UNIVERSITY  OF  CALIFORNIA 
AT   LOS  ANGELES 


ROBERT  ERNEST   COWAN 


No.  5588.                                            No.  5634. 

I3SJ-     THE 

SUPREME  COURT, 

OF    THE 

STATE    OF    CALIFORNIA. 

vs. 

The  City  and  Co.  of  San  Francisco. 

THE  SPRING  VALLEY  WATER  WORKS; 

vs. 

A.  J.  BRYANT,  MAYOR,  ETC.,  ET  ALS. 

PETITION  for  REHEARING. 

CHARLES   N.  FOX, 

Attorney  for  Petitioner. 

].   P.   HOGE,  OF  COUNSEL. 

Filed 

Clerk. 

JOS.  WlNTERBtJKN  &  Co.,    PRINTERS,  417  CLAY    STREET. 


57 


NOTE. — The    first   forms  of   this  petition  were 
printed  as  for  the  case  No.  5588  alone,  the  inten- 

co 

?   tion  being  to  file  a  separate  petition  in  No.  5634; 

>f    but  the  principles  of  the  two  cases  were  so  nearly 
•*  '  •  • 

blended,    that    we    subsequently  determined    to 

«.    argue  both  in  the  same  petition,  as  was  done  at 
»     the  oral  argument.     We  ask  the  Court,  therefore, 
to  treat  this  as  a  petition  in  both  cases. 

OHAS.  X.  FOX. 


361569 


No.    5588. 

II  THE  SUPREME  COURT 

— OK   THE — 

STATE  OF  CALIFORNIA. 

THE  SPRING  VALLEY  WATER  WORKS 

i 

THE  CITY  AND  COUNTY  OF  SAM  FRANCISCO,   j 

PETITION  FOR  REHEARING. 


In  presenting  a  petition  for  rehearing  in  this 
cause  on  behalf  of  the  Spring  Valley  Water 
Works,  it  is  riot  done  so  much  with  the  hope,  or 
even  desire,  to  procure  a  reversal  of  the  real 
judgment  recently  rendered  by  the  Court,  quash- 
ing the  writ,  and  ordering  the  proceeding  dismissed 
(which  is  a  matter  of  little  consequence  to  either 
party),  as  to  secure  a  correct  interpretation  of  the 
words  of  the  statute  requiring  the  petitioner  to 
furnish  water  to  the  City  free  of  charge,  "in  case 
of  fire  or  other  great  necessity."  Both  parties  have 


united  in  asking  the  Court  to  interpret  these  words, 
and  when  there  shall  be  a  final  adjudication  as  to 
their  meaning,  and  the  force  of  the  statute  which 
attempts  to  impose  that  obligation,  both  parties  are 
disposed  to  abide  by  such  judgment,  without  fur- 
ther litigation  on  the  subject.  For  these  reasons, 
although  perhaps  a  review  of  the  decision,  so  far 
as  it  bears  upon  that  subject,  will  not  result  in 
an  actual  change  of  the  order  of  the  Court  in 
reference  to  the  writ,  we  feel  impelled  to  ask  the 
Court  to  reconsider  its  opinion,  so  far  as  it  relates 
to  the  construction  of  these  words,  and  whether 
they  still  are  open  to  construction,  and  the  force 
of  the  statute  in  which  they  are  found. 


I.— RES  JUDICATA. 

We  claimed  at  the  argument,  that  so  far  as  re- 
lates to  any  purpose  for  which  the  city  is  claiming 
or  using  water  at  this  time,  the  question  of 
whether  she  was  entitled  to  such  water  free  of 
charge,  on  the  ground  that  it  came  within  the 
meaning  of  the  term  "other  great  necessity"  had 
been  adjudged  and  determined  by  this  Court  in 
the  case  of  The  City  of  San  Francisco  vs.  The  Spring 
Valley  Water  Works,  decided  in  the  48th  of  Cali- 
fornia Reports,  at  page  493  etseq.  and  is  res  judicata. 

We  respectfully  submit,  that  by  a  long  line  of 
decisions,  uniform  in  their  character,  and  by  the 
rules  of  interpretation  in  which  every  law  student 


is  educated,  we  were  justified  in  presenting  this 
claim,  arid  relying  with  confidence  upon  its  being 
sustained. 

While  the  Court,  in  its  recent  opinion,  does  not 
say  so  in  so  many  words,  it  seems  to  treat  this 
plea  of  resjudicata  as  purely  technical  and  odious. 
In  some  sense,  we  may  say  that  the  whole  science 
of  law  is  technical,  but  it  is  not,  for  that  reason, 
odious.  The  plea  of  res  judicata  is  but  a  plea  of 
estoppel  by  a  former  judgment  between  the  same 
parties.  The  question  of  whether  such  a  plea  is 
odious  or  not  has  been  passed  upon  by  many 
Courts  and  jurists  of  such  acknowledged  learning 
and  ability  that  the  profession  have  come  to  look 
upon  their  determinations  as  furnishing  a  safe 
guide  in  counseling,  and  in  dealing  with  the  in- 
terests of,  their  clients. 

So  respectable  an  authority  as  the  Supreme 
Court  of  the  United  States,  in  Aurora  City  vs.  West 
(7  Wall.,  82),  in  speaking  upon  the  subject,  uses 
these  words:  "The  doctrine  of  estoppel  by  a  for- 
mer judgment  between  the  same  parties  is  one  of 
the  most  beneficial  principles  of  our  jurisprudence, 
and  has  been  less  affected  by  legislation  than 
almost  any  other/' 

In  Van  Rensselaer  vs.  Kearny,  11  How.  U.  8.  S.  K., 
at  page  326,  the  same  Court,  in  speaking  of  the 
doctrine  of  estoppel,  says: 

'•'  The  doctrine  is  founded,  when  properly 
applied,  upon  the  highest  principles  of  morality, 


and  recommends  itself  to  the  common  sense  and 
justice  of  every  one;  and  although  it  debars  the 
truth  in  the  particular  case,  and  therefore  is  not 
unfrequently  characterized  as  odious  and  not  to 
be  favored,  still  it  should  be  remembered  that  it 
debars  it  only  in  the  case  where  its  utterance 
would  convict  the  party  of  a  previous  falsehood ; 
would  be  the  denial  of  a  previous  affirmation  upon 
the  faith  of  which  persons  had  dealt  and  pledged 
their  credit  or  expended  their  money." 

Mr.  JUSTICE  COOLEY,  confessedly  one  of  the 
ablest  jurists  and  most  distinguished  law  writers 
of  the  present  day,  in  his  work  on  Constitutional 
Limitations  (page  47)  says:  "A  decision  once  made 
in  a  particular  controversy  by  the  highest  Court 
empowered  to  pass  upon  it,  is  conclusive  upon  the 
parties  to  the  litigation  and  their  privies,  and  they 
are  not  allowed  afterwards  to  revive  the  contro- 
versy in  a  new  proceeding,  for  the  purpose  of 
raising  the  same,  or  any  other  questions.  The  matter 
in  dispute  has  become  res  judicata;  a  thing  definitely 
settled  by  judicial  decision,  and  the  judgment  of 
the  Court  imports  absolute  verity.  Whatever  the 
question  involved— whether  the  interpretation  of 
a  private  contract,  the  legality  of  an  individual 
act,  or  the  validity  of  a  legislative  enactment — 
the  rule  of  finality  is  the  same.  The  controversy 
has  been  adjudged,  and,  once  finally  passed  upon, 
is  never  to  be  renewed"  And  this  great  student 
cites  in  support  of  the  strong  language  just  quoted, 
a  list  of  authorities,  which,  when  verified  as  we 
have  verified  it,  would  seem  to  justify  counsel  in 


advising  their  clients  that  this  Court  would  prob- 
ably adhere  to  the  rule  there  laid  down.  Among 
them  are  the  following: 

Duchess  of  Kingston's  Case,  2  Smith's  L.  C.,  434 

Etheridge  vs.  Osborn,  12  Wend.,  399. 

Hayes  vs.  Reese,  34  Barb.,  151. 

Hyatt  vs.  Bates,  35  Barb..  308, 

Harris  vs.  Harris,  36  Barb.,  88. 

Young  vs.  Black,  7  Cranch.,  567. 

Chapman  vs.  Smith,  16  How.,  114. 

Wales  vs.  Lyon,  2  Mich.,  276. 

Prentiss  vs.  Holbrook,  2  Mich.,  372. 

Van  Kleek  vs.  Eggleston,  7  Mich.,  511. 

Newberry  vs.  Trowbridge,  13  Mich.,  278. 

Crandall  vs.  James,  6  R.  I.,  144. 

Babcock  vs.  Camp,  12  Ohio  (N.  S.),  11. 

Warner  vs.  Scott,  39  Tenn.  St.,  274. 

Kerr  vs.  Union  Bank,  12  Md.,  396. 

Eimer  vs.  Richards,  25  111.,  289. 

Wright  vs.  Leclaire,  3  Iowa,  241. 

Whitaker  vs.  Johnson  County,  12  Iowa,  595. 

Peay  vs.  Duncan,  20  Ark.,  85. 

Maddox  vs.  Graham,  2  Met  (Ky.),  56. 

George  vs.  Gillispie,  1  Greene  (Iowa),  421. 

Clark  vs.  Sammons,  12  Iowa,  368. 

Taylor  vs.  Chambers,  1  Iowa,  124. 

Skelding  vs.  Whitney,  3  Wend.,  154. 

Hawkins  vs.  Jones,  19  Ohio  (N.  S.)  22. 

Slade  vs.  Slade,  58  Me..  157. 


Geary  vs.  Simmons,  39  Cal.,  224. 
Cannon  vs.  Brame,  45  Ala.,  262. 
Dwyer  vs.  Goran,  29  Iowa,  126. 
Verner  vs.  Carson,  66  Penn.  St..  440. 
Aurora  City  vs.  West,  7  Wall.,  82. 
Harris  vs.  Colquit,  44  Geo.,  663. 
Finney  vs.  Boyd,  26  Wis.,  366. 

"The  rule  of  conclusiveness,"  continues  Mr. 
COOLEY,  "to  this  extent,  is  ONE  OF  THE  MOST  IN- 
FLEXIBLE PRINCIPLES  OF  THE  LAW  ;  insomuch  that 
even  if  it  were  subsequently  held  by  the  Courts 
that  the  decision  in  the  particular  case  was  erro- 
neous, such  holding  would  riot  authorize  the  re- 
opening of  the  old  controversy,  in  order  that  the 
final  conclusion  might  be  applied  thereto."  And 
upon  this  he  cites  : 

McLean  vs.  Hugarin,  13  Johns.,  184. 
Morgan  vs.  Plumb,  9  Wend.,  287. 
Wilder  vs.  Case,  16  Wend.,  583. 
Baker  vs.  Rand,  13  Barb.,  158. 
Kelly  vs.  Pike,  5  Cush.,  484. 
Hart  vs.  Jewett,  11  Iowa,  276. 
Colburn  vs.  Woodworth,  31  Barb.,  381. 
Newberry  vs.  Trowbridge,  13  Mich.,  278. 
Skilden  vs.  Herrick,  3  Wend.,  154. 
Brockway  vs.  Kinuey,  2  Johns.,  210. 
Platner  vs.  Best,  11  Johns.,  530. 
Phillips  vs.  Berrick,  16  Johns.,  136. 
Page  vs.  Fowler,  37  Cal.,  100. 


In  the  last  of  the  cases  just  cited,  Mr.  Justice 
CROCKETT,  speaking  for  this  Court,  uses  this  lan- 
guage: "  The  legal  propositions  which  arose  and  were 
decided  on  the  former  appeal,  whether  they  were  correctly 
decided  or  not,  ham  become  the  law  of  the  case,  so  far  as 
they  were  applicable  to  the  facts  developed  on  the  second 
trial.  There  would  be  no  end  to  the  litigation,  if  the  same 
questions  in  the  case  once  decided  by  the  Appellate  Court 
were  open  to  examination  on  every  succeeding  appeal.  It 
has  been  so  often  decided  by  this  Cow  t  that,  on  a  second 
appeal,  we  will  not  re-examine  the  legal  propositions  de- 
cided on  the  first,  as  to  render  the  citation  of  authorities 
unnecessary." 

With  such  a  decision  as  that  before  us,  coming 
from  our  own  Court,  we  did  not  think  it  necessary 
to  go  into  an  elaborate  argument  of  this  branch  of 
our  case,  at  the  former  hearing.  That  decision  is 
in  strict  conformity  with  an  unbroken  line  of  au- 
thorities, running  back  so  far  that  "  the  memory 
of  man  runneth  not  to  the  contrary;"  neither 
doth  the  record  of  the  books.  Even  in  the  Duchess 
of  Kingston's  case,  decided  in  1776,  their  Lord- 
ships cite  the  rule  as  an  old  and  familiar  one.  In 
fact,  the  rule  is  elementary,  and  we  feel  that  we 
need  not  further  discuss  it,  but  proceed  now  to 
inquire: 


II— WHAT  WAS  DECIDED  IN  THE  FORMER  CASE? 

This  ought  not  to  be  a  matter  of  difficult  solu- 
tion.    The  question  is,  what  did  the  plaintiff  in 


8 

the  former  suit  (defendant  in  this)  claim,  and  what 
did  the  other  party  deny?  Upon  the  issue  thus 
formed,  what  was  the  judgment  of  the  Court  ?  It 
makes  no  difference  upon  what  ground,  either  of 
law  or  fact,  either  party  asserted  its  right.  Both 
parties  were  bound  to  present  their  whole  case  to 
the  Court,  and  if  either  did  not,  it  was  his  own 
fault,  and  he  must  forever  afterwards  abide  the 
consequences. 

After  judgment- on  the  merits,  the  parties  "can- 
not canvass  the  same  question  again  in  another  action, 

ALTHOUGH,  PERHAPS,  SOME  OBJECTION  OR  ARGUMENT 
MIGHT  HAVE  BEEN  URGED  UPON  THE  FIRST  TRIAL  which 

would  have  led  to  a  different  judgment." 
Greathouse  YS.  Bromley,  7  T.  K.,  456. 

"  An  adjudication  is  final  and  conclusive,  not  only  as 
to  the  matter  actually  determined,  hit  as  to  every  other 
matter  which  the  parties  might  have  litigated  and  have 
had  decided  as  incident  to,  or  essentially  connected  with, 
the  subject  matter  of  the  litigation,  and  every  matter 
coming  within  the  legitimate  purview  of  the  orig- 
inal action,  both  in  respect  to  matters  of  claim 
and  defense." 

Haaris  vs,  Harris,  36  Barb.,  88. 
Clemens  vs.  Clemens,  37  N.  ¥.,  59. 

Even  "  the  discovery  of  new  evidence,  not  in 
the  power  of  the  party  at  the  former  trial,  forms 
no  exception  to  the  rule  in  relation  to  estoppels, 
whether  the  second  action  is  at  law  or  in  equity." 

Lessee  of  Rhodes  vs.  Selin,  4  Wash.,  C.  C.,  716. 


9 

It  seems  to  us  that  the  issue  in  the  former  case 
is  as  clear  as  the  noon-day  sun.  The  Water  Com- 
pany threatened  to  cut  off  the  supply  of  water 
for  all  the  purposes  for  which  the  city  was  then 
using  the  same,  except  the  extinguishment  of  fires, 
unless  the  City  would  make  arrangements  to  pay 
for  the  same.  The  City  then  brought  suit  to  en- 
join the  Company  from  carrying  that  threat  into 
execution,  and,  as  a  cause  of  action,  asserted  the 
making  of  this  threat,  and  that  the  municipality 
was  entitled  to  the  water  threatened  to  be  cut  off, 
free  of  charge.  The  Company  admitted  the  threat, 
but  denied  the  allegation  that  the  city  was  en- 
titled to  the  water  free  of  charge. 

The  Court  seems  to  be  under  the  impression 
that  in  the  former  suit  the  issue  was  limited  to 
the  question  whether  the  city  was  entitled  to  said 
water  free  of  charge,  under  the  provisions  of  the 
Ensign  Act  alone — that  it  based  its  claim  upon  that 
act  only,  and  that  the  company  defended  only  on 
the  ground  that  the  Ensign  Act  was  unconstitu- 
tional. If  this  were  true,  the  judgment  would  be 
none  the  less  res  judicata,  under  the  decisions 
which  we  have  cited,  and  which  might  be  multi- 
plied ad  libitum,  for  the  reason  that  no  party  will 
be  permitted  to  impose  upon  a  Court  the  duty  of 
determining  the  question  of  its  right  upon  any- 
thing less  than  all  the  law  and  all  the  facts  as 
they  then  existed.  Parties  cannot  litigate  their 
rights  piecemeal.  Otherwise  the  very  object  of 
establishing  Courts  of  Justice  would  be  defeated 
by  the  Courts  themselves.  Mr.  Freeman  in  his 


10 

work  on  Judgments,  Section  247,  quoting  from 
Justice,  Willes  in  G.  N.  B.  R.  Co.  vs.  Mossop  (17  C.  B. 
140),  says:  ''The  very  object  of  instituting  Courts 
of  Justice  is  that  litigation  should  be  decided, 
and  decided  finally.  That  has  been  felt ,  by  all 
jurists.  It  is  long  since  a  reason  has  been  assigned 
why  judgments  should  be  considered  final,  and 
should  not  be  ripped  up  again — ne  lites  sent  immor- 
tales,  dum  litanies  sunt  mortales.  Human  life  is  not 
long  enough  to  allow  of  matters  once  disposed  of 
being  brought  under  discussion  again ;  and  for  this 
reason  it  has  always  been  considered  a  funda- 
mental rule,  that  when  a  matter  has  once  become 
res  judicata,  there  shall  be  an  end  to  the  question." 

But  it  is  a  mistake  to  suppose  that  the  issue  of 
free  water  was  presented  on  any  such  narrow  plane. 
By  reference  to  the  record  in  the  former  case,  it 
will  be  seen  that  the  complaint  set  out,  at  folio  3 
of  the  transcript,  that  the  Spring  Valley  Water 
Works,  defendant,  was  incorporated  under  the 
''Act  for  the  Incorporation  of  Water  Companies," 
approved  April  22,  1858 — the  very  act  under 
which  it  now  claims  to  derive  its  powers,  and  in 
which  alone  tlu  Court  held  that  its  duties  and 
obligations  were  found;  that  it  had  become  the 
owner  of  the  franchise  granted  to  Ensign  by  the 
act  commonly  called  the  "Ensign  Act;"  at  folio 
11,  that  it  had  become  the  owner  of  the  property 
and  franchises  of  the  San  Francisco  City  Water 
Works,  a  corporation  which  the  complaint  sets 
out  had  acquired  certain  privileges,  and  was  un- 
der certain  obligations,  by  virtue  of  certain  ordi- 


11 

nances  of  the  Board  of  Supervisors;  then  at  folio 
19  we  find  the  following: 

"  The  plaintiff  is  advised  and  believes,  and 
charges  the  same  to  be  true,  that  under  and  by 
force  and  virtue  of  the  said  several  Acts  of  the  Legis- 
lature of  the  State  of  California,  and  orders  and 
ordinances  of  the  Board  of  Supervisors  aforesaid, 
and  upon  the  facts  and  premises  in  this  complaint 
hereinbefore  set  forth,  it  has  become,  and  is,  the 
duty  of  the  defendant  to  furnish,  and,  ever  since 
the  loth  day  of  February,  A.  D.  1865,  the  said  de- 
fendant has  furnished  to  the  plaintiff  all  necessary 
water  for  the  extinguishment  of  any  fire,  and  for 
all  other  municipal  purposes  within  the  limits  of 
the  said  City  and  County  of  San  Fjancisco,  to  the 
full  capacity  of  the  works  held  and  controlled  by 
said  defendant,  free  of  charge  to  the  plaintiff,  and 
that  the  Chief  Engineer  of  said  City  and  County 
of  San  Francisco  (this  plaintiff)  has,  under  the 
direction  of  the  Board  of  Supervisors,  the  right 
to  tap  the  pipes  of  the  defendant  laid  down  in  said 
City  and  County,  for  the  purpose  of  conducting 
water,  and  to  connect  hydrants  therewith,  and  re- 
ceive water  therefrom  for  all  said  purposes,  free  of 
charge." 

Thus,  in  its  complaint,  the  City  fairly  presented 
its  right  to  free  water,  not  only  under  the  "  Ensign 
Act,"  but  under  all  the  laws  of  the  State,  and  ordi- 
nances of  the  City.  Tt  referred  to  the  general 
Act,  and  specially  set  out  the  special  Act  and  the 
City  Ordinances.  At  folio  22  it  declares  the  water 


12 

to  be  "  indispensable  to  the  plaintiff,  to  the  good 
order,  government,  health  and  general  security  of 
the  city,"  and  that  to  be  deprived  of  it  would 
subject  it  to  "great  damage  and  destruction  by 
fire,  and  would  injuriously  affect  the  cleanliness  of 
the  City  and  County,  and  the  health  of  the  in- 
habitants thereof,  and  would  greatly  injure  and 
obstruct  the  Almshouse,  the  Hospitals,  Industrial 
School,  and  other  public  institutions  of  the  said 
City  and  County  of  San  Francisco;"  thus  showing 
the  purposes  for  which  the  water  was  then  used 
and  claimed. 

To  the  issue  thus  tendered,  the  defendant;  this 
petitioner,  after  denying  that  the  City  was  entitled 
to  water  free  of  charge  under  the  several  special 
grounds  claimed  in  the  complaint,  making  a  dis- 
tinct issue  upon  every  one  of  them,  at  folio  55, 
makes  this  full  denial: 

"  These  defendants  deny,  upon  and  according  to 
their  information  and  belief,  that  under  and  by 
force  and  virtue  of  ANY  Act  or  Acts  of  the  Legisla- 
tive of  the  State  of  California,  or  of  any  order  or  or- 
ders, ordinance  or  ordinances  of  the  Board  of  Su- 
pervisors aforesaid,  or  for  any  other  cause,  vihatever, 
it  has  become,  or  is  the  duty  of  these  defendants, 
to  furnish  to  plaintiff  all  water  necessary,  or  any 
water,  within  the  limits  of  said  City  and  County 
or  elsewhere,  to  the  full  capacity  of  the  works 
held  and  controlled  by  these  defendants,  or  to  any 
extent  whatever,  free  of  charge,  to  plaintiff;  for  all 
municipal  purposes,  or  for  any  municipal  or  other 


13 

purpose  whatever,  except  for  the  extinguishment 
of  fires  during  the  pendency  of  the  same." 

And  this  was  followed  b}^  a  denial  of  having 
furnished  the  same,  and  an  averment  that  the  City 
had  been  taking  it  without  the  consent  or  permis- 
sion of  the  Company.  The  answer  contained  full 
denials  of  every  averment  of  the  complaint  upon 
the  subject  of  its  right  to  water  free  of  charge, 
except  for  the  extinguishment  of  fires.  Thus  it 
will  be  seen  that  the  broad  issue  was  presented 
in  the  pleadings,  whether  the  City  was  entitled  to 
water  free  of  charge  from  the  pipes  of  the  Com- 
pany, or  whether  the  Company  was  bound  to  fur- 
nish the  same  free  of  charge,  for  any  purpose 
other  than  the  extinguishment  of  fires.  It  was 
not  limited  as  to  the  ground  upon  which,  or  the 
law  under  which,  the  claim  was  based,  and  no  one 
of  the  grounds  was  ever  afterwards  withdrawn 
from  the  consideration  of  the  Court.  It  therefore 
matters  not  upon  what  ground,  or  upon  what 
statute,  counsel  may  have  relied  at  the  argument — 
the  issue  tendered  by  the  pleadings  was  the  one 
to  be  decided,  and  the  one  which,  we  submit,  was 
decided.  If  the  right  existed,  the  remedy  was 
confessed,  and  the  Court  accepted  that  confession. 

The  argument  at  the  hearing  in  1870  was  con- 
fined mainly  to  a  consideration  of  the  duties  and 
obligations  of  the  company,  and  the  rights  of  the 
city,  under  the  ordinances  of  the  Board  of  Super- 
visors, and  the  ''Ensign  Act."  But  that  fact  did 
not  take  out  of  the  case  the  question  of  those 


14 

duties,  obligations  and  rights,  under  the  general 
law,  which  was  just  as  much  involved  in  the  plead- 
ings and  the  issues  made  up,  as  any  other.  At 
the  first  hearing  on  the  second  appeal,  the  argu- 
ment was  confined  to  the  question  of  those 
duties,  obligations  and  rights,  under  the  "Ensign 
Act,"  in  view  of  the  admitted  fact  that  water  had 
been  introduced  by  some  other  company;  but,  on 
the  rehearing,  the  proposition  was  fairly  presented 
that  the  "  Ensign  Act"  was  unconstitutional  and 
the  only  duties  and  obligations  of  the  company, 
and  rights  of  the  city,  were  those  prescribed  by 
the  general  law  of  1858,  under  which  the  com- 
pany was  incorporated.  This  proposition,  the 
Court  sustained,  and  then,  if  never  before,  it  be- 
came necessary,  to  a  determination  of  the  case,  to 
determine  what  those  duties,  obligations  and  rights 
were  under  this  general  law,  and  it  was  also  com- 
petent for  the  Court  to  determine  the  question, 
for  it  was  directly  within  the  issue  made  up  by 
the  pleadings. 

With  such  pleadings,  the  argument  so  presented, 
the  purposes  for  which  the  water  was  being  used, 
which  was  threatened  to  be  cut  off,  and  the  fact 
that  it  was  "  indispensdbk"  to  the  city,  all  set  out 
in  the  pleadings,  the  Court  gives  its  judgment,  de- 
nying the  injunction — refusing  to  enjoin  the  com- 
pany from  executing  its  threat,  either  in  whole  or 
in  part. 

If  it  was  not  absolutely  necessary  for  the  Court 
to  determine  the  question  whether  the  city  was 


15 

entitled  to  water  free  of  charge  for  any  of  the 
purposes  for  which  she  was  then  using  the  same, 
and  which  came  within  the  purview  of  that  threat 
(and  that  included  all  the  purposes  for  which  she 
was  then  using  the  same,  except  the  extinguish- 
ment of  fires),  we  confess  ourselves  unable  to  see 
what  was  necessary  to  be  determined.  There  is 
no  other  way  the  judgment  could  be  reached. 
Falling  back  upon  the  general  law,  and  treating 
that  as  a  valid  law,  it  necessarily  determined  that 
the  company  was  bound  to  furnish  water  free  of 
charge,  in  "case  of  fire  or  other  great  necessity," 
but  it  just  as  necessarily  determined  that  the  pur- 
poses for  which  the  city  was  then  using  water, 
other  than  for  the  extinguishment  of  fires,  though 
"indispensable  to  the  city,"  did  not  come  within 
the  term  "other  great  necessity."  Had  it,  or  any 
portion  of  it,  come  within  that  term,  the  injunc- 
tion must  have  been  granted  as  to  such  portion. 
The  Court  had  before  it  in  the  pleadings  a  state- 
ment as  to  what  the  water  was  used  for,  and  also 
a  declaration  that  it  was  even  more  than  a  "  great 
necessity" — that  it  was  "  indispensable."  The 
Court  held  that  the  company  was  bound  to  fur- 
nish water  free  of  charge,  "in  case  of  fire  or  other 
great  necessity;"  and  on  deciding  a  petition  for 
rehearing  filed  on  behalf  of  the  city,  reiterated 
this  holding,  even  in  stronger  language,  and  yet 
decided  that  we  had  a  right  to  cut  off  the  water 
for  all  purposes  for  which  the  city  was  then  using 
the  same,  except  the  extinguishment  of  fires.  If 
this  is  not  holding  that  the  purposes  for  which 
she  was  then  using  the  water  did  not  come  with- 


16 

in  the  term  ''other  great  necessity/'  it  is  difficult 
to  determine  what  the  holding  was. 

The  direct  and  ONLY  issue  in  the  case  was 
whether  the  city  was  entitled  to  water  free  of 
charge  from  the  pipes  of  the  defendant  for  the 
purposes  for  which  she  was  then  using  the  same, 
other  than  the  extinguishment  of  fires,  and  the 
remedy  sought  was  injunction  to  restrain  the 
company  from  cutting  it  off.  The  company 
acknowledged  that  if  she  was  entitled  to  the  water 
free  of  charge,  she  was  entitled  to  the  injunction. 
The  Court  could  not  have  denied  it  upon  any 
other  ground  than  that  she  was  not  entitled  to  the 
water  free  of  charge,  or  that  injunction  was  not 
the  proper  remedy,  and  it  die  not  deny  it  on  the 
latter  ground.  Under  the  decisions  of  this  Court, 
there  can  be  no  question  that  so  far  as  relates  to 
the  purposes  for  which  the  city  was  then  using 
the  water,  the  matter  is  res  judicata. 

Jones  vs.  Petaluma,  36  Cal,  230. 
Clark  vs.  Boyreau,  14  Cal.,  634. 
Jackson  vs.  Lodge,  36  Cal.,  28. 
Jiarnum  vs.  Reynolds,  38  Cal.,  643. 
Amesti  vs.  Castro,  49  Cal.,  325. 
Phelan  vs.  Gardner,  43  Cal.,  306. 
Wetmore  vs.  San  Francisco,  44  Cal.,  294. 
Hosraer  vs.  Wallace,  51  Cal.,  368. 

In  this  case,  there  is  no  pretense  of  either  new 
law  or  new  facts  which  did  not  exist  at  the  time 
of  the  former  judgment. 


17 

But  the  Court  says  "  it  was  adjudged  in  the 
former  case  that  the  company  was  bound  to  fur- 
nish water  free  of  charge  for  some  purposes." 
Granted.  But  it  was  only  "  in  case  of  fire  or 
other  great  necessity."  The  Court  did  not  deter- 
mine what  purposes  might  be  included  within  the 
term  '"  other  great  necessity,"  but  if  there  is  any- 
thing in  the  decisions  to  which  we  have  referred, 
and  in  the  rule  of  law  which  is  so  old  that  it  has 
become  elementary,  it  did  determine  that  none  of 
the  purposes  then  under  consideration  came 
within  that  term. 

The  very  language  adopted  by  the  Court  shows 
that  it  understood  at  the  time,  that  it  was  passing 
upon  the  rights  and  duties  of  the  parties  under 
the  general  law.  At  pages  514- 15,  the  Court  says-. 
"  TESTED  BY  THE  GENERAL  LAAV  under  which  the  defend- 
ant was  organized,  it  is  under  no  obligation  to  furnish 
water  to  the  City  and  County  free  of  charge,  except^ie 
ajdinguishment  of  Jires  during  the  pendency  thereof." 
Thus  it  will  be  seen  that  by  the  pleadings  the  Court 
was  called  upon  to  pass  upon  the  question  under 
the  general  law,  and  by  the  positive  statement  of 
the  Court  it  did  so  pass  upon  the  question.  On 
the  faith  ^of  this  decision,  the  parties  have  acted 
ever  since.  Millions  of  dollars  have  been  invested 
on  the  faith  of  the  rule  of  law  thus  established  — 
almost  the  entire  stock  of  the  corporation  having 
changed  hands  at  advanced  prices.  True,  the 
Court  said,  in  other  parts  of  the  decision,  and  the 
statute  so  declares,  that  the  company  shall  fur- 
nish water  free  of  charge  to  the  city  "  in  case  of 


18 

fire  or  other  great  necessity,"  and  it  was  under- 
stood that  possibly  some  other  necessity  might 
arise,  beside  fire,  in  which  it  might  be  called  upon 
to  furnish  water  free  of  charge,  but  certainly  not 
for  any  of  the  ordinary  purposes  of  the  municipal- 
ity, like  those  for  which  she  was  then  using  the 
water. 

Xow,  in  this  case,  that  former  judgment  is 
especially  pleaded,  and  it  is  alleged  that  tlie  pur- 
poses for  which  the  City  nmv  claims  the  water  fret  of 
charge  ARE  THE  SAME.  AND  NO  OTHER,  as  the  purposes 
for  which  she  was  claiming  and  using  the  water 
at  the  time  of  the  bringing  of  that  former  suit, 
and  of  the  rendition  of  the  judgment;  and  that 
allegation  is  admitted.  Ho'w  can  it  be  said  that 
the  question  is  not  res  judicata. 

But  if  the  Court  shall  still  adhere  to  the  prop- 
osition that  this  is  still  an  open  question,  so  far  as 
it  relates  to  the  purposes  for  which  the  city  was 
then  and  is  now  claiming  water  free  of  charge, 
then  we  ask  the  Court  to  reconsider  the  ques- 
tion of — 

IH-WHAT  IS  MEANT  BY  THE  TERM  "  IN  CASE 
OF  FIRE  OR  OTHER  GREAT  NECESSITY." 

And  we  confess  that  we  come  to  the  discussion 
of  this  question  at  this  time  with  some  trepida- 
tion; first,  because  we  feel  an  abiding  conviction 
that  so  far  as  this  case  is  concerned,  it  ought  not  to 
be  an  open  question ;  and  second,  because  the 
Court,  while  it  has  kept  in  view  one  rule  of  con- 


19 

struct/ion,  upon  which  the  authorities  are  not  en- 
tirely uniform,  namely,  that  where  there  is  a  doubt 
as  to  the  interpretation  of  a  statute  granting  fran- 
chises, the  doubt  shall  be  resolved  in  favor  of  the 
public,  it  seems  to  us  to  have  overlooked  that 
other,  more  pregnant  and  more  uniform  rule,  that 
statutes  shall  be  so  construed,  if  possible,  as  to 
give  force  and  effect  to  every  part  and  every  word 
of  which  they  are  composed.  When  the  Court 
strikes  out  from  the  statute  the  word  "great,"  and 
then  interprets  the  balance  to  mean  "all  the  neces- 
sities of  Local  Government,"  we  cannot  help  but 
feel  that  it  has  overlooked  the  rule  above  referred 
to,  and  gone  far  toward  changing  the  law  itself. 

"A  statute  ought,  upon  the  whole,  to  be  so 
construed  that,  if  it  can  be  prevented,  no  clause, 
sentence  or  word  should  be  superfluous,  void  or 
insignificant." 

Potters  Dwarris  on  Stat.  and  Con.,  Ed.  1871,  p.  1 10, 
citing  1  Show,  108;  R.  vs.  Burchett,  Hard.,  344. 

And  this  Court  has  not  been  entirely  silent  in 
the  assertion  of  the  same  rule. 

"A  statute  should  be  so  construed  as  to  give 
effect  and  meaning,  if  possible,  to  every  clause  and 
word  contained  in  it." 

Souter  vs.  The  Seawitch,  1  Cal.,  162. 
Chever  vs.  Hayes,  3  Cal.,  471. 
San  Francisco  vs.  Hazen,  5  Cal.,  169. 
People  vs.  Waterman,  31  Cal.,  412. 


20 

Appeal  of  N.  B.and  Mission  R.  R.  Co.,  32  Cal.,  499. 

Langenous  vs.  French,  34  Cal.,  92. 

Gates  vs.  Salmon,  35  Cal.,  516. 

Appeal  of  S,  0.  Houghton,  42  Cal.,  35. 

People  vs.  Southwell,  46  Cal.,  722. 

Justice  Crockett,  in  Corey  vs.  Hyde,  49  Cal.,  469. 

To   the  same  effect  are  the  following  decisions 
of  other  Courts: 

United  States  vs.  Warner,  4  McLean.  463. 
United  States  vs.  Bassett,  2  Story  C.  Ct,  389. 
Ogden  vs.  Strong,  2  Payne,  584. 
United  States  vs.  Ragsdale,  1.  Hempst.,  497. 
Bartlett  vs.  Morris,  9  Port.  (Ala.),  266. 
Farrell  Foundry  vs.  Dart.  26  Conn.,  376. 
Pearce  ve.  Atwood,  13  Mass.,  324. 
Doane  vs.  Phillips,  12  Pick.,  223. 
Leversee  vs.  Reynolds,  13  Iowa,  310. 
Opinion  of  the  Justices,  22  Pick.,  571. 
James  vs.  Dubois,  16  N.  J.  L.  (1  Harr.),  285. 
Hutchin  vs.  Niblo,  4  Blackf.  (Ind.),  148. 
Gee  vs.  Thompson,  11  La.  Ann.,  657. 
Lacy  vs.  Moore,  6  Caldu.  (Penn.),  348. 
Nichols  vs.  Halliday,  27  Wis.,  406. 
Hagonbuck  vs.  Reed,  3  Neb.,  177. 

A  volume  might  be  filled  with  simple  references 
to  the  cases  in  which  the  same  principle  is  laid 
down. 


21 

It  can  hardly  be  possible  that  the  law  maker 
intended  to  require  water  companies,  organized 
under  this  general  law,  to  furnish  water  free  of 
charge  for  all  municipal  purposes,  as  distinguished 
from  family  uses,  as  now  declared  by  the  Court. 
If  such  had  been  the  intention,  the  Legislature, 
instead  of  saying:  "in  case  of  fire  or  other  great 
necessity."  would  have  used  language  about  which 
there  could  be  no  doubt,  and  said,  as  it  said  in  the 
"Ensign  Act,"  passed,  as  shown  by  the  journals 
of  the  Legislature,  one  day  before  the  general  law, 
although  not  approved  until  one%day  after:  "for 
tire  and  other  municipal  uses."  Legislatures  are 
to  be  presumed  to  say  what  they  mean  After 
providing  what  the  duties  and  rights  of  the  com- 
pany should  be  in  reference  to  water  for  "family 
uses,"  if  it  had  intended  to  require  the  company 
to  furnish  water  free  for  all  municipal  purposes, 
it  would  have  been  the  simplest  thing  in  the  world 
to  say  so.  That  it  intended  to  do  less  than  that 
is  manifest  from  the  fact  that  it  used  language  of 
limitation — language  which,  to  make  it  mean  that, 
requires  both  emasculation  an  interpretation. 

The  Legislature,  in  framing  this  provision  of  our 
law,  have  not  resorted  to  technical  language,  but 
have  used  the  common  language  of  every  day  life. 
While  it  is  the  duty  of  the  Court,  if  possible,  to 
give  effect  to  every  word  so  used,  and  not  to  strike 
out  any  of  them,  the  Legislature  has  also  declared 
how  they  shall  be  construed.  In  the  Civil  Code, 
Sec.  13,  and  the  Code  of  Civil  Proceedure,  Sec.  16,  it  is 
provided : 


22 

"  Words  and  phrases  are  construed  according  to  the 
context,  and  the  approved  usage  of  the  language." 

We  can  hardly  conceive  that  it  is  construing  the 
words  and  phrase  "in  case  of  fire  or  other  great 
necessity,''  according  to  the  context,  and  the  ap- 
proved usage  of  the  language,  to  strike  out  the 
word  "great"  altogether,  and  say  that  the  phrase 
means  "in  case  of  fire,  and  for  all  other  purposes 
for  which  it  may  be  demanded  by  the  authorities 
of  the  City  and  County  in  the  discharge  of  their 
direct  duties  as  governmental  agents;''  or,  as  is  said 
in  another  place,  such  uses  "as  are  incidental  to 
the  direct  employment  by  the  municipaUty  of  its 
Govermental  or  police  powers,  as  distinguished 
from  the  family  uses  of  a  portion  of  its  inhabit- 
ants." 

Nor  is  this  provision  of  the  codes  in  conflict 
with,  but  rather  declaratory  of,  the  law  as  it  had 
before  been  adjudged  in  numerous  decisions. 

"Words  of  a  statute,  not  technical,  are  to  be 
construed  according  to  their  common  acceptation/' 

Quigley  vs.  Gorham,  o  Cal.,  418. 
Gross  vs.  Fowler,  21  Cal.,  392. 
Sprague  vs.  Norway,  31  Cal.,  173. 
Appeal  of  S.  0.  Houghton,  42  Cal.,  35. 
Maillard  vs.  Lawrence,  19  How.,  51. 

Wigg  vs.  The  United  States  (Ct.  of  Claims).  Dev., 
157. 

Beatty  vs.  The  United  States,  In.,  157. 


23 

Chase  vs.  The  United  States,  Ib.,  158. 

Schreifer  vs.  Wood,  5  Blatchf.,  215. 

Canal  Co.  vs.  Schroeder,  7  La.  Ann.,  615. 

Parkinson  vs.  The  State,  14  Md.,  184. 

Green  vs.  Weller,  32  Miss.,  650. 

Mayor  of  Wetumpka  vs.  Winter,  29  Ala.,  651. 

Favers  vs.  Glass,  22  Ala.,  621. 

Engelking  vs.  Van  Wamel,  26  Texas,  469. 

Bailey  vs.  The  Commonwealth,  11  Bush  (Ky.),  688. 

State  vs.  The  Mayor  of  Patterson,  35  N.  J.  L.,  197. 

"  In  the  construction  of  a  statute,  words  should 
never  be  supplied  or  changed,  unless  to  effect  a 
meaning  clearly  shown  by  other  parts  of  the 
statute — to  carry  out  an  intent  somewhere  ex- 
pressed." 

Lane  vs.  Sehomp,  20  N.  J.  Eq.,  82. 

It  can  hardly  be  claimed  that  it  is  necessary  to 
change  the  sentence  here  under  consideration  by 
striking  out  some  words  and  substituting  others, 
in  order  to  carry  out  an  intent  shown  in  any 
other  part  of  the  Act. 

"  Where  the  meaning  of  the  words  employed  in 
a  statute  is  plain,  the  Courts  cannot  qualify  it  by 
construction  on  the  grounds  of  public  policy. 
Still  less  can  they  introduce  distinct  exceptions." 

Hyatt  vs.  Taylor,  42  N.  Y.  250. 

When  the  language  of  the  statute  is  definite, 
and  has  a  precise  meaning,  as  we  contend,  and 


24 

will  endeavor  to  show  that  this  has,  it  must  be 
presumed  to  declare  the  intent  of  the  legislature, 
and  conjecture,  or  other  means  of  interpretation, 
cannot  be  resorted  to,  in  order  to  restrict  or  ex- 
tend its  meaning. 

Johnson  vs.  Hudson  B.  R.  R.  Co.,  49  N.  ¥.,  455. 
People  vs.  Schoonmacher,  63  Barl).,  49. 

When  the  language  of  a  statute  is  unambiguous.. 
Courts  must  enforce  the  Act  as  it  reads;  they  can- 
not supply  defects,  or  relieve  inconveniences  by 
construction. 

Benton  vs.  Wigware,  54  N.  ¥.,  226. 
Rosenplaenter  vs.  Rossele,  5t  N.  Y.  262. 

There  is  another  reason  why  the  language  of 
this  provision  should  be  strictly  construed.  It  is 
a  provision  in  derogation  of  common  law,  and  of 
common  right;  and  one  which  has  no  parallel  in 
any  other  statute  in  this  State;  in  that  it  imposes 
a  burden  and  obligation  upon  the  citizen— that 
of  surrendering  up  a  part,  and  it  may  be  the  whole, 
of  the  fruits  of  his  industry,  the  property  acquired 
by  his  labor  and  his  capital,  for  the  common  good, 
and  without  compensation.  This  is  a  burden  un- 
known to  the  common  law,  and  not  imposed  by 
any  statute  of  this  State  upon  any  citizens,  or  any 
corporation  except  water  companies.  We  are 
aware  that  one  of  the  Justices  expressed  surprise 
at  this  latter  proposition,  at  the  argument,  but  we 
believe  it  to  be  strictly  true.  We  are  unable  to 
find  any  statute  which  imposes  a  similar  obligation. 


25 

In  other  cases  where  similar  use  of  streets  is  given, 
the  duty  of  keeping  them  in  repair,  and  of  paying 
license  for  transacting  business,  and  of  paying 
taxes  on  the  pipes  or  rails,  and  other  property  of 
the  company  laid  in  the  streets,  is  imposed ;  but 
all  these  duties  are  also  imposed  upon  and  per- 
formed by  us.  In  no  other  instance  is  any  portion  of 
the  property  required  to  be  surrendered  up  to  public  use. 
No  person,  corporation,  or  arm  of  the  government 
is  entitled  to  gas  for  any  purpose,  free  of  charge. 
No  individual,  officer  or  ward  of  the  State,  is  en- 
titled to  travel  free  upon  our  railroads,  or  to  free 
transportation  for  freight;  on  the  contrary  it  is  a 
crime  for  a  railroad  company  to  carry  any  but  its 
own  employees  free. 

This  provision  of  the  statute,  then,  being  in 
derogation  of  common  law,  should  be  construed 
strictly,  and  the  obligation  imposed  by  it  should 
not  be  enlarged  by  implication  or  construction. 

Hotaling  vs.  Cronise,  2  Cal.,  60. 

Turner  vs.  Tuolumne  Co.  Water  Co.,  25  Cal ,  400. 

Brown  vs.  Barry,  3  Ball.,  365. 

Wick  vs.  The  Samuel  Strong,  6  McLean,  587. 

Sprague  vs.  Birdsall,  2  Cow.,  419. 

Bridgwater  and  Utica  vPl.   JR.  Co.  vs.  Robbins,  22 
Barb.,  662. 

Wright  vs.  Briggs,  2  Hill,  77. 

Millered  vs.  Lake  0.,  A.  &  N.  Y.  R.  R.  Co.,  9  How. 
Pr.,  238. 

McClusky  vs.  Cromwell,  11  N.  Y.,  593. 


26 

Melody  vs.  Keab,  4  Mass.,  471. 

Gibson  vs.  Jenny,  15  Mass.,  205. 

Commonwealth  vs.  Knapp,  9  Pick.,  496. 

Wilbur  vs.  Crane,  13  Pick.,  284. 

Lock  vs.  Miller,  3  Stew*  &  P.  (Ala,),  13. 

Dwelly  vs.  Dwelly,  46  Me.,  377. 

Burnside  vs.  Whitney,  21  N.  Y.,  148. 

Sullivan  vs.  La  Crosse  Packett  Co.,  10  Minn.,  386. 

Smith  vs.  Moftat,  I  Barb.,  65. 

Young  vs.  McKenzie,  3  Geo,,  31. 

Schuyler  Co.  vs.  Mercer  Co.,  9  111.,  20. 

Baily  vs.  Bryan,  3  Jones,  N.  C.  L.,  357. 

Sibley  vs.  Smith,  2  Mich.,  486. 

Esterley's  Appeal,  54  Pa.  St.,  192. 

Harrison  vs.  Leach,  4  W.  Virginia,  383. 

Dewey  vs.  Goodenough,  56  Barb.,  54. 

A  power  claimed  in  derogation  of  individual 
right  ought  not  to  be  allowed  upon  doubtful  con- 
struction merely — at  least  not  upon  ambiguous 
words. 

Wright  vs.  Briggs,  2  Hill,  77. 

People  vs.  Lambier,  5  Denio,  9. 

Every  statute  derogatory  to  the  rights  of  prop- 
erty, or  that  takes  away  the  estate  of  the  citizen, 
ought  to  be  construed  strictly. 

Sharp  vs.  Spier.  4  Hill.,  76. 
Corwin  vs.  Merritt,  34  Barb.,  371. 


27 

If  any  doubt  exists  as  to  the  intention  of  the 
Legislature,  the  Courts,  in  construing  their  acts, 
should  presume  that  they  did  not  intend  to  take 
away  individual  or  private  property  without  just 
compensation  to  the  owners. 

French  vs.  Kirkland,  1  Paige,  117. 

Statutes  imposing  duties  upon  subjects  or  citi- 
zens are  to  be  construed  most  strongly  against  the 
Government,  and  in  favor  of  the-subjector  citizen, 
and  their  provisions  are  not  to  be  extended  by  im- 
plication beyond  the  clear  import  of  the  language 
used. 

United  States  vs.  Wiggleston,  2  Story,  369. 

The  last  decision  applies  with  peculiar  force  to 
this  case.  Even  if  it  be  true,  as  announced  in  the 
opinions  filed,  that  in  statutes  granting  franchises, 
doubts  are  to  be  resolved  in  favor  of  the  public, 
that  rule  applies  only  to  such-  doubts  as  arise  in 
reference  to  what  is  granted ;  not  when  the  doubt 
is  as  to  what  is  to  be  taken  from  the  citizen;  as  to 
something  not  granted  by  the  public,  but  which 
the  public  never  had  to  grant,  and  which  is  pro- 
duced by  the  labor  and  the  capital  of  the  citizen. 
As  in  this  case,  in  reference  to  the  duty  of  the 
Company  to  surrender  a  portion  of  the  property 
in  which  the  State  never  had  any  interest,  produced 
wholly  by  private  capital. 

A  close  construction  should  be  given  to  statutes 
which  work  forfeitures  or  confiscations  of  property. 

United  States  vs.  Athens  Armory,  35  Ga.,  344. 


28 


A  statute  requiring  gratuitous  service  of  any 
class  of  citizens  is  against  common  right,  and 
should  receive  strict  construction. 

Webb  vs.  Baird,  6  Ind.,  13. 

Even  statutes  providing  for  the  taking  of  private 
property  against  the  will  of  the  owner  by  the  pro- 
cess of  condemnation,  are  in  derogation  of  com- 
mon law,  and  must  be  strictly  construed. 

Bensley  vs.  Mountain  Lake  Water  Company,   13 
Cal.,  306. 

Sanford  vs.  Worn,  27  Cal.,  171. 

Damrell   vs.  Supervisors  ol  San  Joaquiu,  40  Cal., 
15*. 

Trumpley  vs.  Bemerley,  39  Cal. ,  490. 

Chambers  vs.  Satterlee,  40  Cal.,  497. 

S.  F.  and  A.  W.  Co.  vs.  Alameda  W.  Co.,  36  Cal.,  639. 

Curran  vs.  Shattuck,  24  Cal.,  427. 

Smith  vs.  Davis,  30  Cal.,  537. 

C.  P.  R.  R.  Co.  vs.  Pearson,  35  Cal.,  247. 

Again,  it  is  the  duty  of  the  Court  to  so  construe 
the  statute,  if  possible,  in  cases  where  there  is  such 
doubt  about  the  language  used  as  to  need  con- 
struction, as  to  make  it  constitutional. 

French  vs.  Teschmacher,  24  Cal.,  524. 
People  vs.  Frisbie,  26  Cal.,  135. 
Slack  vs.  Jacob,  8  W.  Vs.,  612. 

Attorney-General  vs.  City  of  Eau  Claire,  37  Wis., 
400. 

Duncome  vs.  Prindle,  12  Iowa,  1. 


29 

Iowa  &c.  Co.  vs.  Webster  County,  21  Iowa,  221. 

Newland  vs.  Mars,  19  111.,  384. 

Bigelow  vs.  West  Wis.  R.  R.  Co.,  27  Wis.,  478. 

Dow  vs.  Norris,  4  N.  H.,  17. 

Clark  vs.  Rochester,  24  Barb.,  471. 

In  view,  then,  of  the  principles  of  law  govern- 
ing, and  which  ought  to  govern  the  Courts,  in 
cases  of  this  kind,  we  submit  that  the  portion  of 
the  statute  which  declares  that  water  companies 
"  shall  furnish  water,  to  the  extent  of  their  means, 
to  such  city  and  county,  or  city  or  town,  in  case 
of  fire  or  other  great  necessity,  free  of  charge," 
are 

First — To  be  construed  according  to  the  con- 
text, and  the  common  usage  of  the  language. 

Second — It  is  to  be  construed  strictly,  and  not 
enlarged  or  extended  by  implication. 

Third — It  is  to  be  construed,  if  possible,  so  as 
not  to  make  it  come  in  conflict  with  the  Consti- 
tution. And 

Fourth — That,  in  the  forming  of  the  sen- 
tence, the  words  "or  other  great  necessity,"  are 
meaningless,  for  the  reason  that  they  are  too  in- 
definite arid  uncertain  to  be  capable  of  construc- 
tion; that  they  neither  enlarge  or  diminish  what 
goes  before;  that  the  former  decision,  hereinbe- 
fore quoted,  ending  with  the  words  "  except  for 
the  extinguishment  of  fires,  during  the  pendency 


30 

thereof,"  although  not  a  correct  quotation  of  the 
language  of  the  statute,  is  a  correct  solution  of 
all  that  it  means. 

First — The  phrase  shall  be  construed  according 
to  the  context,  and  the  approved  usage  of  the 
language.  And  when  we  come  to  analyze  this 
phrase  in  the  light  of  that  provision  of  the  Codes, 
and  of  the  decisions  which  we  have  cited,  the  first 
word  that  demands  our  especial  attention  is  the 
word  '''case.'"  What  position  does  it  hold  in  the 
sentence  framed  by  the  law-maker  ?  and  what  does 
it  mean  in  that  position  ?  We  find  that  the  Latin 
of  this  word  is  casus.  from  cadere,  to  fall;  to  hap- 
pen; that  which  falls,  comes,  or  happens.  If  the 
words  u  or  other  great  necessity  "  mean  anything, 
they  are  to  be  read  as  if  the  word  -'case"  was  re- 
peated: "  In  case  of  fire,  or  in  case  of  other  great 
necessity."  It  means,  then,  "upon  the  happening 
of  fire,  or  upon  the  happening  of  other  great  ne- 
cessity." Or,  to  make  it  still  plainer,  '*  upon  the 
happening  of  fire,  or  upon  the  happening  of  other 
event  producing  a  great  necessity."  Not,  as  the 
Court  would  read  it,  ''  upon  the  happening  of  fire. 
and  for  all  other  purposes  for  which  it  may  be  de- 
manded by  the  authorities  of  the  city  and  county 
in  the  discharge  of  their  direct  duties  as  govern- 
mental agents."  The  authorities  of  the  city  and 
county  mny  demand  it  for  a  thousand  purposes, 
not  one  of  which  befalls  or  happen*,  but  all  of 
which  are  of  daily  and  constant  recurrence,  or  in 
other  words,  of  perpetual  existence.  When  we 
examine  this  word,  there  can  be  no  doubt  that  the 


31 

only  time  when  a  company  is  required  to  furnish 
water  free  of  charge,  is  upon  the  happening  of 
some  event  producing  an  urgent  necessity,  for 
which  provision  could  not  be  made  in  advance — 
something  out  of  the  ordinary  course;  something 
which,  if  it  could  be  anticipated  as  likely  to  hap- 
pen at  some  time,  was  still  uncertain  as  to  time, 
and  as  to  the  extent  of  the  demand.  This  word 
case  seems  to  us  one  of  the  controlling  words  in 
this  sentence.  While  the  Court  has  not  ignored 
it,  or  stricken  it  out  where  it  actually  occurs,  it 
seems  to  us  that  it  has  failed  to  see  the  force  of 
the  word,  and  also  to  have  utterly  stricken  it  out 
of  the  latter  part  of  the  sentence,  where  by  the 
common  usage  of  the  language  it  is  as  much  a  part 
as  if  written  there  anew. 

The  word  great  is  also  an  important  element  in 
the  construction  of  this  sentence.  The  Court  tells 
us  that  it  adds  nothing  to  the  word  "  necessity," 
and  is  to  be  disregarded  in  that  connection. 
While  it  strikes  out  the  word,  as  being  what  in 
our  judgment  the  law  maker  intended  it  to  be,  a 
ivord  intensifying  the  meaning  of  the  word  "necessity" 
the  Court  retains  it  and  construes  it  as  a  word  of 
quantity.  In  other  words,  if  we  understand  the 
Court  rightly,  it  seems  to  hold  that  the  question 
of  free  water  does  not  depend  upon  the  emergency 
which  occasions  the  demand,  but  upon  the  quan- 
tity required  to  meet  such  demand. 

We  confess  that  the  word  great  is  a  word  of 
quantity  as  well  as  o/  magnitude.  But  Webster 


32 

tells  us  that  it  is  also  frequently  used  as  "a  word 
of  emphasis,  or  to  intensify  the  meaning  of  the  words 
with  which  it  is  associated."  "  Necessity"  is  not  a 
word  of  quantity,  but  it  is  a  word  of  urgency,  and 
is  frequently,  and  in  the  common  usage  of  our  lan- 
guage, intensified  by  prefixing  ihe  word  "great," 
as  in  this  instance.  This  was  undoubtedly  the 
sense  in  which  the  word  was  used  by  the  law 
maker  in  this  statute.  The  use  of  it  in  that  sense 
is  in  strict  harmony  with  the  use  of  the  other 
word  case,  and  the  two  do  not  harmonize,  if  it  is 
used  in  any  other  sense. 

But  giving  the  sentence  the  construction  given 
to  it  by  the  Court,  strikes  out  not  only  the  word 
"  great.''  as  being  anything  else  than  a  word  of 
quantity,  but  it  also  strikes  out  entirely  the  word 
necessity,  and  makes  the  duty  to  furnish  water 
free  of  charge  depend,  not  upon  necessity,  great 
or  small,  but  upon  "  demand  of  the  city  authori- 
ties." And  in  explaining  the  purposes  for  which 
that  demand  may  be  made,  and  when  made  must 
be  heeded,  it  has  not  only  ignored  both  these 
words  adopted  by  the  legislature,  but  substituted 
in  their  place  words  of  exactly  an  opposite  mean- 
ing; requiring  us  to  furnish  water  free  of  charge 
for  purposes  of  ornamentation  and  luxury.  If 
there  is  a  decision  in  all  the  books  which  will  jus- 
tify such  a  change,  we  confess  that  we  have  been 
unable  to  find  it. 

Nor  do  we  think  that  the  maxim  of  /loscitur  « 
sociis  can  be  ignored  in  the.  construction  of  this 


33 

sentence.  An  illustration  is  given,  of  the  kind  of 
case,  calamity  happening,  which  will  justify  the 
public  in  demanding  this  property  free  of  charge, 
and  it  seems  to  us  clear  that  it  is  only  in  similar 
cases,  upon  the  happening  of  a  similar  calamity, 
that  it  can  be  required  of  us  to  furnish  the  water 
free  of  charge.  This  view  is  borne  out  by  the 
construction  given  to  similar  language  in 

Mills  vs.  Baehr's  executors,  24  Wend.,  254. 

And  by  the  principles  established  in 
Biggelow  vs.  Collamere,  5  Cush.,  226. 
Wells  vs.  Castles,  5  Gray,  325. 

Second:  It  should  be  strictly  construed,  because 
it  is  in  derogation  of  common  law,  and  of  com- 
mon right.  It  is  an  encroachment  upon  the  rights 
of  property,  which  rights  should  always  be  held 
sacred.  It  is  not  a  reservation  to  the  public  of  a 
part  of,  or  an  interest  in  that  which  was  granted 
to  the  company  by  the  public,  which  was  only  the 
right  to  lay  pipes  in  the  streets  of  the  City  and 
County,  for  the  purpose  of  introducing  water  into 
said  City.  But  it  is  an  attempt  to  secure  to  the 
public  a  right  in  property  which  has  been  pro- 
duced by  the  industry,  and  secured  by  the  capital 
of  the  citizens — a  right  to  appropriate  that  pri- 
vate property  to  certain  public  uses,  without  com- 
pensation. The  extent  to  which  such  a  right 
should  be  exercised  should  be  most  strictly  con- 
strued. 


34 

The  legislature  undoubtedly  intended  that  un- 
der this  provision  of  the  statute,  the  public  should 
be  intitled  to  the  water  from  these  pipes  free  of 
charge  in  order  to  arrest  a  conflagration,  or  the 
ravages  of  a  pestilence,  or  under  the  pressure  of 
an  immediate  and  overwhelming  necessity  to  pre- 
vent a  public  calamity,  but  at  that  limit  the  power 
of  the  State  over  private  property  ought  to  cease. 

Third:  The  construction  must  be  such  as,  if  pos- 
sible, will  not  bring  the  provision  in  conflict  with 
the  Constitution.  While  every  citizen  holds  his 
property  subject  to  the  duty  of  yielding  up  a  part 
thereof,  proportionate  to  that  which  is  required  of 
every  other  citizen,  in  the  shape  of  taxes  for  the 
support  of  the  government,  and  to  the  chance  of 
having  the  whole  or  any  part  of  it  taken  or  de- 
stroyed, in  the  presence  of  a  great  calamity,  like 
a  conflagration,  a  sudden  pestilence,  or  a  public 
enemy,  without  first  waiting  to  ascertain  and  pay 
its  value,  he  does  not  hold  it  subject  to  public  in- 
terference to  any  greater  extent,  or  for  any  other 
purpose.  Possibly  to  that  extent  this  statute  may 
be  held  to  secure  the  public  a  right  in  this  prop- 
erty, (although  we  by  no  means  admit  even  such 
was  the  intention,  or  is  the  proper  construction 
of  this  provision)  but  the  moment  we  attempt  to 
cary  it  a  step  beyond  that  limit  by  construction, 
that  moment  we  bring  the  statute  in  conflict  with 
all  the  most  sacred  guarantees  of  the  Constitutions, 
both  State  and  Federal.  But  of  that  we  shall 
have  more  to  say  hereafter. 


35 

Fourth:  A  strict  construction  of  this  statute 
brings  it  right  down  to  what  the  Court  in  the 
former  case  declared  to  be  the  duty  of  the  com- 
pany, namely:  To  furnish  water  free  of  charge 
in  case  of  fire.  It  goes  no  further,  and  has  no 
other  meaning.  The  words  "  or  other  great 
necessity"  are  vague,  indefinite,  uncertain,  mean- 
ingless, and,  therefore,  void.  They  are  like  the 
words  "  for  other  purposes,"  frequently  found  in 
the  titles  of  Acts,  and  these  have  been  held  to  en- 
press  nothing,  and  amount  to  nothing;  that  they 
must  be  laid  out  of  consideration.  That  nothing 
which  the  Act  could  not  embrace  without  them 
could  be  brought  in  by  their  aid. 

Town  of  Fishkill  vs.  Fishkill  and  Beekmau  PL 

Road  Co.,  22  Barb.,  642. 
Rynerson  vs.  Utley,  16  Mich.,  296. 
St.  Louis  vs.  Tiefel,  42  Mo.  578. 


IV— THE  PROVISION  OF  LAW  REQUIRING  THE 
WATER  COMPANY  TO  FURNISH  WATER 
FREE  OF  CHARGE,  IS  UNCONSTITUTIONAL 
AND  VOID. 

This  is  a  point  stated  by  Mr.  lloge  in  the  course 
of  his  argument,  but  not  much  argued  at  that 
time,  for  the  reason  that  we  believed  the  whole 
matter  to  be  res  judicata  as  between  these  parties. 
But  we  regard  the  proposition  as  a  sound  one,  and 
since  the  Court  treats  it  as  an  open  question,  we 
now  urge  it  for  careful  consideration. 


36 

We  do  not  deny  the  proposition,  that  when  the 
Legislature  grants  to  an  individual  a  franchise, 
something  which  does  not  belong  alike  to  all 
citizens  of  the  State,  the  right  to  exercise  a  power 
which  all  may  not  exercise,  and  which  cannot  be 
exercised  by  any  without  the  same  or  a  similar 
franchise,  it  may  give  such  direction  as  to  the 
manner  of  exercising  that  franchise,  and  reserve  to 
itself  such  control  over  its  exercise,  as  in  its 
wisdom  it  sees  fit.  When  it  grants  to  another  the 
right  to  use  public  property,  it  may  attach  such 
conditions  to  its  use,  and  reserve  to  the  public 
such  interest  in  the  property  itself,  as  it  shall 
deem  the  public  good  to  require.  But  the  pro- 
vision of  law  now  under  consideration  goes  far 
beyond  any  such  proposition. 

The  water  in  the  reservoirs  and  pipes  of 
this  company,  is  its  private  property.  It  is 
property  not  derived  from  the  State.  No  interest 
in  it  was  granted  by  any  act  under  which  the 
company  derives  its  powers.  It  has  been  acquired 
by  the  expenditure  of  millions  of  dollars  of 
private  capital,  and  is  as  sacred  as  any  other 
private  property  in  the  State.  The  provision  that 
it  shall  be  furnished  free  from  any  public 
pose,  is  not  a  reservation  in  something  which  was 
granted,  but  is  a  bald  attempt  to  take  private 
property  for  public  use  without  compensation. 
It  is  a  violation  of  the  Constitution  of  the  United 
States,  and  of  this  State. 


37 

Private  property  shall  not  be  taken  for  public 
use  without  just  compensation. 

5th  Am.  to  Const,  of  United  States. 
Art.  1,  Sec.  8,  Const,  of  California. 
Gunter  vs.  Geary,  1  Cal.  462. 
Surrocco  vs.  Geary,  3  Cal.  69. 
M'Cann  vs.  Sierra  Co.,  7  Cal.  121. 
S.  Y.  R.  R.  Co.  vs.  Moffatt,  7  Cal.  577. 
Coltou  vs.  Rossi,  9  Cal.  595. 
M'Cauley  vs.  Weller,  12  Cal.  500. 

Bensley  vs.  Mountain  Lake  Water  Company,   13 
Cal.  306. 

Johnson  vs.  Alameda  Co.,  14  Cal.  106. 
Taylor  vs.  Porter,  4  Hill,  140. 

These  citations  might  be  multiplied  indefftnite- 
ly,  but  we  give  only  a  few  of  the  earlier  cases  in 
our  own  Court,  the  Court  having  ever  since  con- 
tinued to  make  the  rule  more  and  more  stringent. 

The  statute  in  this  instance  undertakes  to  do 
away  with  all  the  usual  processes  of  condemnation, 
and  to  make  a  direct  appropriation  of  the  property 
to  public  use,  without  compensation.  This  is  as 
much  a  violation  of  the  Constitution  as  an  appro- 
priation without  compensation  in  any  other  form. 

Cooley  on  Const,  limitations,  P.  354  &  C.  C. 
Potter's  Dwarris  on  Stat.,  Eel.  1871,  P.,  468. 


38 

"The  article  is  a  restraint  on  tho  legislative,  as 
well  as  on  the  executive  and  judicial  powers  of 
the  government." 

Murray's  Lessees  vs.  Hoboken  Land  Co.,  18  How., 
276, 

This  provision  of  the  statute  is  also  in  conflict 
with  that  other  provision  of  the  Federal  and  State 
Constitutions,  which  insures  protection  to  the  cit- 
izen in  his  life,  liberty  and  property,  and  declares 
that  they  shall  not  be  taken  without  due  process 
of  law.  Statutes  are  not  themselves  "  due  process 
of  law."  They  only  provide  for  due  process. 
"  Due  process  of  law  is  that  which  hears  before  it 
condemns;  which  proceeds  upon  inquiry,  and  ren- 
ders judgment  only  after  trial.  Every  thing  which 
may  pass  under  the  form  of  an  Enactment,  is  not, 
therefore,  to  be  considered  the  law  of  the  land." 

Mr.  Webster,  in  Dartmouth  College  Case. 

The  security  of  life,  liberty  and  property,  lies 
at  the  foundation  of  the  social  compact;  and  to 
say  that  this  grant  of  "  legislative  power  "  includes 
the  right  to  attack  private  property,  is  equivalent 
to  saying  that  the  people  have  delegated  to  their 
servants  the  power  of  defeating  one  of  the  great 
ends  for  which  the  government  was  established.  * 
*  *  The  words  "  by  the  law  of 

the  land  "  do  not  mean  a  statute  passed  for  the 
purpose  of  working  the  wrong.  That  construction 
would  render  the  restriction  absolutely  nugatory, 
and  turn  this  part  of  the  Constitution  into  mere 
nonsense." 

Taylor  vs.  Porter,  4  Hill.,  H5. 


39 

"  The  fundamantal  maxims  of  a  free  government 
seem  to  require  that  the  rights  of  personal  liberty 
and  private  property  should  be  held  sacred.  At 
least  no  Court  of  Justice  in  this  country  would  be 
warranted  in  assuming  that  the  power  to  violate 
and  disregard  them — a  power  so  repugnant  to  the 
common  principles  of  justice  and  civil  liberty — 
lurked  under  any  general  grant  of  legislative  au- 
thority, or  $ught  to  be  implied  from  any  general 
expressions  of  the  will  of  the  people.  The  peo- 
ple ought  not  to  be  presumed  to  part  with  rights 
so  vital  to  their  security  and  well  being,  without 
very  strong  and  direct  expressions  of  such  'an  in- 
tention." 

Wilkinson  vs.  Leland,  2  Peters,  657. 
See  also,  Jones  vs.  Perry,  10  Yerger,  59. 
Ervines  appeal,  16  Penn  St.,  256. 
Arrowsmith  vs.  Burlingim,  4  M'Lean,  498. 
Lane  vs.  Dorman,  3  Scammon,  238. 
Reed  vs.  Wright,  2  Greene  (Iowa),  15. 
Woodcock  vs.  Bennett,  1  Cow.,  740. 
Commonwealth  vs.  Byrne,  20  Grat.,  165. 

"Those  terms,  'Law  of  the  Land,'  do  not  mean 
merely  an  act  of  the  General  Assembly.  If  they  did, 
every  restriction  upon  the  Legislative  authority 
would  be  at  once  abrogated.  For  what  more  can 
the  citizen  suffer,  than  be  taken,  imprisoned,  dis- 
seized of  his  freehold,  liberties  and  privileges,  be 
outlawed,  exiled  and  destroyed,  and  be  deprived 
of  his  property,  his  liberty  and  his  life  without 


40 

crime?  Yet  all  this  he  may  suffer,  if  an  act  of 
the  Assembly  simply  denouncing  these  penalties 
upon  particular  persons,  or  a  particular  class  of 
persons,  be,  in  itself,  the  law  of  the  land  within 
the  sense  of  the  Constitution;  for  what  is  in  that 
sense  the  law  of  the  land,  must  be  duly  observed 
by  all,  and  upheld  and  enforced  by  the  Courts. 
In  reference  to  the  infliction  of  punishment,  and 
divesting  the  rights  of  property,  it  has  been  re- 
peatedly held  in  this  State,  and,  it  is  believed,  in 
every  other  of  the  Union,  that  there  are  limita- 
tions upon  the  legislative  power,  notwithstanding 
these  words;  and  that  the  clause  itself  means  that 
such  legislative  acts  as  profess  in  themselves  di- 
rectly to  punish  persons,  or  to  deprive  the  citizen 
of  his  property,  without  trial  before  the  judicial 
tribunals,  and  a  decision  upon  the  matter  of  right, 
as  determined  by  the  laws  under  which  it  is  vested, 
according  to  the  course,  mode  and  usages  of  the 
common  law,  as  derived  from  our  fathers,  are  not 
effectually,  laws  of  the  land  for  those  purposes." 

Hoke  vs.  Henderson,  4  Dev.,  15. 

Nor  can  this  provision  be  maintained  under  the 
oft  quoted  "Police  Powers  of  the  State."  That 
expression  is  a  very  vague  and  indefinite  one,  but 
so  far  as  relates  .to  the  taking  of  property,  it  has 
never  been  held  to  extend  beyond  the  power  to 
take  or  destroy,  in  the  presence  of  an  impending 
calamity,  like  a  conflagration,  a  pestilence,  or  a 
public  enemy,  without  first  rendering  compensa- 
tion therefor.  And  even  when  taken  under  that 


41 

power,  and  in  such  an  emergency,  it  is  not,  as  a 
general  thing,  permitted  to  be  taken  without  com- 
pensation, but  simply  that  the  taking  may  pre- 
cede the  compensation.  Beyond  this,  the  police 
power  of  the  State  over  private  property  extends 
merely  to  the  regulation  of  the  use  of  it — to  pre- 
scribing such  regulations  as  will  require  the  owner 
to  so  use  it  as  not  to  prevent  his  neighbor  from 
an  equal  use  and  enjoyment  of  his  own  property, 
or  so  as  not  to  expose  the  property  of  his  neigh- 
bor to  unnecessary  danger  from  conflagration,  or 
his  neighbor's  family  to  unnecessary  dangers  from 
pestilence.  This  is  the  extent  of _ the  police  pow- 
ers of  the  State.  It  never  extends  to  the  taking 
of  private  propert}^  for  any  ordinary  public  use. 

Nor  can  it  be  claimed  under  the  taxing  power 
of  the  State;  as  a  tax  imposed  upon  this  company; 
for  all  taxes  must  be  equal  and  uniform,  and  no 
similar  tax  is  levied  upon  any  other  citizen  or 
corporation  of  the  State. 


V.-IS  THE  WATER  OF  THIS  CORPORATION 
PROPERTY  WITHIN  THE  MEANING  OF  THE 
LAW? 

We  are  told  now  that  water  is  not  property, 
and  not  the  subject  of  sale.  This  argument  was 
first  presented  to  the  Court,  after  two  of  the 
counsel  for  the  company,  and  the  City  Attorney 
himself,  had  had  their  day  in  Court.  Though  it 


42 

was  finally  presented  in  an  elaborate  printed  pam- 
phlet, that  pamphlet,  and  all  intimation  that  such 
a  position  would  be  taken,  was  kept  a  profound 
secret  from  us  until  it  was  so  late  that  we  had  no 
opportunity  to  reply  to  it,  except  such  opportun- 
ity as  Mr.  Hoge  might  have,  upon  having  it  sprung 
upon  him  in  the  midst  of  oral  argument,  without 
a  moment. for  examination,  or  preparation.  The 
proposition  seemed  also  so  absurd  that  we  felt 
that  it  would  be  an  insult  to  the  intelligence  of 
the  Court  to  spend  any  time  in  considering  it. 
But  in  view  of  what  has  transpired  since,  we  may 
be  justified  in  briefly  alluding  to  it. 

First — The  Legislature  of  the  State,  it  seems  to 
us,  has  settled  this  question.  In  Section  2  of  the 
Water  Company  Act.  it  provides  that  the  Company 
may  appropriate  and  take  possession  of,  and  use 
and  hold  all  such  kinds  and  waters,  as  may  be 
required  for  the  purposes  of  the  Company,  upon 
m'lkiny  compensation  therefor.  The  Legislature  thus 
places  waters  upon  the  same  footing  with  lands, 
and  requires  that  compensation  should  be  made 
therefor.  The  State,  in  the  exercise  of  the  power 
of  eminent  domain,  is  not  required  to  pay  for  that 
which  is  not  property 

Again,  we  doubt  if  there  is  an  instance  on  rec- 
ord where  it  is  made  a  crime  to  take  that  which 
is  not  property.  In  other  words,  if  water  is  not 
property,  it  may  be  taken  by  any  one,  wherever 
found,  and  no  public  offense  is  committed.  If  it 
is  not  property,  it  is  not  the  subject  of  larceny. 


43 

The  legislature  has  for  many  years  expressly  rec- 
ognized water  as  property,  by  making  the  taking 
of  it  from  the  works  of  any  water  company  a 
crime. 

See  Statutes  of  1861,  P.,  533. 
Penal  Code,  Sec.  499, 

Second — While  the  counsel  for  the  city  has  en- 
deavored, in  that  part  of  his  argument  having  re- 
lation to  the  rights  of  the  city  to  water  free  of 
charge,  based  upon  the  city  ordinances,  to  show 
that  we  derive  some  of  this  water  from  lands 
claimed  by  the  city,  the  fact  is  equally  as  well 
authenticated,  that  even  as  to  those  lands,  we 
have  acquired  them  by  purchase,  and  hold  them 
in  fee  simple  absolute.  That  we  are  in  possession 
of  them  is  a  fact  admitted  and  complained  ot  all 
through  the  argument.  Until  higher  evidence  of 
ownership  is  given,  possession  itself  is  an  evidence 
of  ownership.  But  it  also  appears  throughout 
this  and  the  former  case,  that  the  great  body  of 
the  water  held  by  this  corporation,  is  brought  in 
from  San  Mateo  county.  There  the  company  holds 
by  patent  from  the  sovereign,  large  bodies  of 
land,  forming  the  sources  of  supply.  There  it  has 
acquired,  at  immense  cost,  the  lands  upon  which 
the  waters  rise,  the  lands  under  the  waters,  and 
is.  either  by  virtue  of  its  ownership  of  all  the 
lands  affected,  or  by  grants  from  others  who  had 
riparian  rights,  the  right  to  collect,  stoie,  and  di- 
vert these  large  bodies  of  water  which  are  neces- 
sary to  supply  the  needs  of  a  population  so  num-  - 


u 


orous  us  that  composing  the  inhabitants  of  the 
city  of  San  Francisco.  Owning  the  lands,  it  is 
also  the  absolute  owner  of  the  water. 

"Land,  in  its  legal  signification,  has  an  indefi- 
nite extent  upwards,  and  a  grant  of  it  conveys  to 
the  grantee,  not  only  the  field,  or  the  meadow, 
but  all  the  growing  timber  and  water  standing  and 
being  thereon;  and  a  stream  of  water  is  therefore 
as  much  the  property  of  the  ownor  of  the  soil  over 
which  it  passes,  as  the  stones  scattered  over  it." 

Angel;  on  Water  Courses,  Sec.  5. 
Buckingham  vs.  Smith,  10  Ohio,  288. 
Bullen  vs.  Runnels,  2  N.  H.,  255. 
1  Greenli  f's  Ed.  Cruise's  Digest,  37. 
Woolrych  Law  of  Waters,  U6. 

Owning  the  streams  from  which  this  water 
comes,  the  lands  upon  which  it  rises,  and  upon 
which  it  is  stored,  the  pipes  and  aqueducts  in 
which  it  is  transported  from  the  source  of  supply 
to  the  place  of  distribution,  there  can  be  no  doubt 
vof  the  fact  that  the  water  is  as  much  private  prop- 
erty, as  was  the  money  of  the  stockholders  before 
it  was  invested  in  this  enterprise. 

Upon  this  point  we  submit  a  quotation  from  a 
single  other  authority,  which,  for  clearness  of 
statement,  and  the  great  learning  and  ability  of  its 
author,  we  feel  convinced  will  be  sufficient  for  all 
the  purposes  of  this  petition.  Tt  is  this: 


45 

a  Water,  when  collected  in  reservoirs  and  pipes, 
and  thus  separated  from  the  original  source  of 
supply,  is  personal  property,  and  as  much  the  sub- 
ject of  sale — an  article  of  commerce — as  ordinary 
goods  and  merchandise." 

John  F.  Swift,  in  his  Petition  for  Re-hearing,  in 
San  Francisco  vs.  S.  V.  W.  W.,  Page  10. 

We  need  hardly  remind  your  honors  of  the  time 
when  you  bought  water  by  the  bucket  full  for  use 
in  your  offices,  and  for  all  your  "  family  uses,"  to 
prove  that  it  has  always  been  the  subject  of  sale 
in  San  Francisco,  although  not  always  in  such 
quantity  as  now. 


TI.— THE  POWER  OF  THE  COMPANY  TO  DEAL  IN 
WATER. 

To  fully  understand  this  question,  it  becomes 
necessary  to  understand  what  was  and  is  the  fran- 
chise granted  by  this  Act  of  the  Legislature. 
What  right  does  it  confer  upon  corporations 
organized  under  it,  that  is  not  possessed  by  any 
and  all  other  citizens  of  the  State? 

The  first  section  of  this  Act,  (  Stat.  1858,  p. 
218.)  makes  the  General  Incorporation  Act  of 
1853,  and  the  Amendatory  Act  of  1855,  applicable 
to  water  companies.  This  grants  no  franchise. 
Those  General  Incorporation  Acts  were  not  acts 
granting  any  franchise,  other  than  providing  the 
mode  and  manner  of  organizing  associations  for  ' 


46 

trading  and  commercial  purposes,  0:1  a  stock  basis, 
instead  of  common  partnership.  No  rights  were 
granted  to  such  corporations,  other  than  those 
possessed  by  individuals  unincorporated,  except 
the  right  to  sue  and  be  sued  by  a  common  name, 
to  have  a  common  seal,  to  have  the  interests  of 
different  parties  therein  represented  by  shares  of 
stock,  and  the  business  managed  by  a  Board  of 
Directors,  and  freedom,  during  the  term  of  its 
existence,  from  the  ills  of  mortality.  Tho  same 
business  that  was  carried  on  by  these  corpor- 
ations, could  be  carried  on  by  any  individual  in 
the  community.  The  only  franchise  then  granted 
by  these  Acts,  was  the  franchise  of  existence 

Section  2  of  the  Act  grants  a  specific  franchise 
to  water  companies,  not  held  by  individuals,  and 
not  held  by  any  corporation  by  virtue  of  its  exis- 
tence alone;  the  right  to  acquire  property  by  the 
exercise  of  eminent  domain.  The  mode  and 
manner  of  the  exercise  of  that  franchise  is  fully 
defined.  The  consideration  for  granting  it  is 
found  in  the  fact  that  the  granting  of  it  would 
enable  private  capital  to  accomplish  a  work 
which,  though  purely  private,  would  redound  to 
the  common  good,  and  advance  the  interests  of 
the  State;  a  work  which  was  deemed  to  be  a 
public  convenience,  but  in  which  the  public  did 
not  desire  to  embark. 

The  only  other  franchise  granted  by  the  act, 
and  the  only  portion  of  the  act  which  grants  any 
right  in,  or  use  of.  public  property,  is  that  found 


47 

in  section  five  of  the  act,  and  that  is  the  right  to 
lay  and  maintain  water  pipes  in  the  streets,  lanes 
and  alleys  of  the  city  or  town.  That  franchise  is 
granted  upon  the  condition  that  the  streets  shall 
be  kept  in  repair,  and  shall  be  subject  to  the  reas- 
onable direction  of  the  city  or  tdwn  authorities, 
in  the  mode  and  manner  of  exercising  it. 

No  part  of  the  act  grants  to  the  company  any 
land  or  any  water,  or  any  interest  in.  or  use  of, 
any  public  property  whatever,  except  the  use  of 
the  streets  upon  the  conditions  aforesaid. 

Now,  in  addition  to  prescribing  the  mode  and 
manner  of  exercising  the  first  of  these  franchises, 
that  of  acquiring  property  necessary  for  the  cor- 
porate purposes  by  the  power  of  eminent  domain, 
and  insuring  the  protection  of  the  public  property 
by  providing  for  the  manner,  and  under  what  di- 
rection and  supervision  the  second  shall  be  exer- 
cised, the  legislature  has  also  insured  the  protec- 
tion of  the  people  against  extortion  in  the  matter 
of  their  urgent  needs,  by  providing  that  water 
shall  be  furnished  to  the  inhabitants,  so  long  as 
the  supply  permits,  for  family  uses,  without  dis- 
tinction of  persons,  and  at  reasonable  rates;  and 
provides  a  method  of  insuring  that  those  rates 
shall  be  reasonable,  if  ever  the  company  fails  to 
make  them  so. 

While  such  are  the  provisions  of  the  statute — 
a  statute,  which  in,  and  of  itself  does  not  attempt 
to  define  the  general  powers  of  the  company,  only 
touching  upon  two  points  which  are  not  covered 


48 

by  the  general  incorporation  law  to  which  the 
company  is  remitted,  and  remitting  us  to  that 
general  incorporation  law  for  our  general  powers 
and  privileges — we  have  been  amazed  to  find  that 
the  Court  has  dropped  expressions  which  have 
created  a  very  general  public  impression  that  the 
company  has  no  power  to  sell  water  for  any  pur- 
pose except  for  family  uses,  and  that  while  it  is 
bound  to  furnish  water  for  those  uses,  it  cannot 
collect  pay  therefor  except  when  rates  shall  have 
been  first  fixed  by  a  commission  appointed  in  the 
manner  designated  by  the  fourth  section  of  the 
act.  We  do  not  so  understand  the  decision  of  the 
Court,  and  yet  there  are  expressions,  especially  in 
the  concurring  opinion  of  Mr.'  Justice  CROCKETT, 
which  may  lead  to  that  impression ;  and  so  we  call 
attention  at  this  time  to  the  fact  that  the  general 
powers  of  this  company  are  derived  from  the  gen- 
eral incorporation  act  of  1853,  and  the  amendatory 
act  of  1855.  and  are  by  no  means  limited  to  the 
special  provisions  contained  in  the  Water  Company 
Law  of  1858. 

Under  those  laws,  the  company  possesses  all  the 
powers  of  a  manufacturing  and  commercial  com- 
pany, so  far  as  pertains  to  the  construction  of 
water  works,  and  dealing  in  water.  It  is  true 
that  .those  acts  do  not  say  that  companies  organ- 
ized under  them  may  deal  in  water,  nor  does  it 
mention  other  commodities  in  which  corporations 
may  deal,  but  it  authorizes  them  to  organize  for 
the  purpose  of  engaging  in  any  species  of  trade, 
foreign  or  domestic.  There  can  be  no  doubt, 


49 

even  without  the  aid  of  the  water  company  act  of 
1858,  companies  might  organize  under  these  acts 
for  the  purpose  of  constructing  water  works,  and 
engaging  in  the  business  of  selling  water.  But 
without  the  aid  of  the  water  company  act,  they 
could  not  acquire  property  by  condemnation;  or 
lay  pipes  in  the  streets  of  a  city,  except  by  special 
contract  with  the  city  authorities,  a  contract 
which  ths  city,  without  special  legislative  author- 
ity, would  have  no  power  to  make. 

The  company,  therefore,  derives  its  power  to 
acquire  property  by  condemnation,  and  its  power 
to  lay  pipes  in  the  streets  of  the  city,  from  the 
water  company  law  of  1858;  but  its  power  to 
build  water  works,  and  to  deal  in  water,  its  power 
to  buy  and  sell,  is  derived  from  the  general  incor- 
poration laws  of  1853  and  1855,  and  is  wholly 
independent  of  the  law  of  1858,  so  far  as  its  general 
powers,  in  that  regard,  are  concerned.  Like  other 
corporations  formed  under  the  general  incorpora- 
tion law,  it  may  deal  with  whom  it  pleases,  when  it  pleases 
and  as  it  pleases,  except  so  far  as  that  liberty  is  re- 
strained by  the  law  of  1858.  By  the  law  of  1858 
it  must  sell  for  family  uses,  without  distinction  of 
persons,  and  at  reasonable  rates.  In  the  absence 
of  that  law,  it  could  have  sold  to  one  and  refused 
to  sell  to  another,  and  in  each  instance,  like  any 
private  person,  could  have  demanded  from  each 
applicant  such  price  as  it  saw  fit.  That  rule  applies 
only  to  water  for  family  uses..  For  those  uses  it  is 
compelled  to  sell,  so  long  as  the  supply  permits, 
at  reasonable  rates;  but  for  any  other  purpose,  it, 


50 

like  any  other  individual  or  corporation  may  sell 
or  not,  as  it  pleases,  may  sell  to  one,  and  refuse 
to  sell  to  another,  and  may  charge  such  price  as 
it  can  agree  upon  in  each  and  every  instance. 
With  the  exception  of  family  uses,  and  such  cor- 
porate uses  as  the  city  rnay  be  entitled,  under  the 
law,  to  demand  water  for,  the  State  has  reserved 
no  more  power  over  this  property,  either  as  to 
price,  when,  where,  for  what  purpose,  or  to  whom, 
it  shall  be  sold,  than  she  has  over  any  other  pri- 
vate property  in  the  State. 

The  Court  has  correctly  held  that  we  are  not 
bound  to  furnish  water  for  family  uses  free  of 
charge  in  both  cases.  This  matter  of  fixing  rates 
is  a  provision  inserted  for  the  protection  of  per- 
sons requiring  water  for  family  uses  (and  not  for 
any  other,  unless  it  be  the  municipality),  and  is  a 
measure  over  which  the  company  has  no  control. 
When  the  public  attempt  to  fix  rates  for  the  com- 
pany, the  company  is  protected  by  being  given  a 
voice  in  the  proceeding,  but  until  the  public  take 
the  initiative,  the  rates  are  absolutely  within  the 
control  of  the  company,  as  are  the  rates  at  which 
any  other  citizen  may  sell  his  property.  If  for 
family  uses  it  is  claimed  that  the  company's  rates 
are  unreasonable,  then  the  public  may  inaugurate 
proceedings  to  make  them  reasonable,  but  until 
the  rates  are  so  fixed,  upon  the  motion  of  the 
public  authorities,  and  in  a  proceeding  in  which 
the  company  has  a  voice  in  the  selection  of  its 
judges,  the  rates  established  by  the  company  must 


51 

be    paid,  or    it  is  not  compelled    to  furnish  the 
water. 

We  are  not  aware  that  this  question  has  ever 
been  discussed  before  this  Court,  but  this  seems 
to  be  the  common  sense  view  of  it,  and  it  is  the 
view  taken  by  Mr.  JUSTICE  McKiNSTRY  at  nisi  prius 
in  the  only  case  where  we  have  ever  known  it  to 
arise.  In  the  case  of  € >rte  Madera  Water  Co.  vs. 
Sneath,  in  San  Mateo  County,  this  question  came 
directly  up.  the  action  being  for  water  furnished 
by  a  company  organized  under  this  general  law, 
and  one  of  the  defenses  being  that  no  rates  had 
ever  been  fixed  in  the  manner  provided  by  law. 
The  Court  said  in  that  case,  "  The  defendant  can- 
not refuse  to  pa}^  what  the  water  is  worth 
because  rates  have  not  been  fixed.  If  rates  had 
been  fixed  they  would  be  evidence  of  value.  No 
rates  having  been  fixed,  the  charge  must  be  rea- 
sonable, and  without  distinction  of  persons.  The 
charges  must  be  relatively  equal,  but  it  is  not 
necessary  that  they  should  be  by  the  gallon,  or 
that  every  circumstance  but  mere  quantity  should 
be  excluded."  This  we  believe  to  be  the  true  in- 
terpretation of  the  law,  but  we  do  not  think  the 
law  as  to  rates  applies  to  any  of  the  purposes  for 
which  water  may  be  required,  except  family  uses. 
In  other  words,  THE  LEGISLATURE  HAS  NOT 
ATTEMPTED  TO  PROVIDE  FOR  FIXING 
THE  RATES  IN  ANY  CASE  WHERE  IT  HAS 
NOT  ATTEMPTED  TO  COMPEL  THE  COM- 
PANY TO  SELL.  Wherever  it  is  optional  with  the 
company  to  sell  or  not,  there  it  is  aho  optional  at  what 


52 

price  it  ivill  sell.  That  the  company  has  power  to 
sell  its  property,  generally,  there  can  be  no  doubt. 
The  very  statute  to  which  we  are  remitted  for  the 
ascertainment  of  our  general  powers  (Stat.  of 
April  14,  1853,  Sec.  4)  provides  that  the  company 
shall  have  power  to  ;i  purchase,  hold,  sell  and  con- 
vey, such  real  and  personal  estate  as  the  purposes 
of  the  corporation  shall  require."  No  one  would 
pretend  that  a  company  organized  to  manufacture 
and  deal  in  boots  and  shoes,  had  no  power  to  sell 
boots  and  shoes  generally — that  it  could  sell 
them  to  families  only,  even  if  by  another  Act 
such  a  company  was  required  to  sell  to  families 
without  distinction  of  persons.  So  a  company 
organized  to  build  water  works,  and  deal  in  water, 
may  sell  its  commodities  in  any  market,  and  to  any 
customer  coming  within  the  jurisdiction  where  it 
is  authorized  to  transact  business.  Even  if  there 
be  a  particular  class  to  whom  it  is  obliged  to  sell, 
that  does  not  prevent  it  from  selling  to  others. 

It  may  make  any  kind  of  contract  not  prohib- 
ited by  law  or  the  provisions  of  its  charter. 

Union  Water  Company  vs.  Murphy's  Flat  Fume  Co., 
22  Cal.,  620. 

It  may  sell  and  convey  its  property. 

Gashwiller  vs.  Willis,  33  Cal.,  11. 

Miner's  Ditch  Co.  vs.  Zellerbach,  3?  Cal.,  543. 

People  vs.  P.  &  T.  C.  of  C.  Co.,  38  Cal.,  166. 

Under  these  circumstances  we  are  at  a  loss  to 
determine  whence  comes  the  authority  to  say,  as 


53 

is  said  in  the  eleventh  clause  of  thefof'.  syllabus 
/this  case — "  the  corporation  is  entitled  to  charge 
only  for  water  supplied  for  family  uses;;'  or, 
as  is  said  in  the  opinion  of  Mr.  JUSTICE  CROCKETT, 
"Under  its  act  of  incorporation,  it  has  'not 
the  legal  capacity  to  charge,  except  for  water 
furnished  for  family  uses."  Laws  are  sup- 
posed to  be  reasonable,  and  it  would  hardly  be 
reasonable  to  suppose  that  capitalists  would  in- 
vest their  money,  to  the  extent  of  millions  of  dol- 
lars, under  a  law  which  gave  them  no  power  to 
sell  except  for  a  particular  purpose,  which  would 
be  inadequate  to  furnish  a  business  that  would  pay 
even  the  minimum  interest  on  the  money  invested. 
The  more  so,  if  at  the  same  time  it  compelled  them 
to  surrender  up  their  stock  in  trade,  to  the  full 
extent  of  the  supply  on  hand,  at  the  demand  of 
the  public  authorities,  free  of  charge. 


VII.-THE  POWER  OF  THE  CITY  TO  PURCHASE. 

It  is  intimated  that  the  city  has  no  power  to 
purchase  water,  even  for  her  "family  uses/'  until 
rates  shall  have  been  fixed  in  the  manner  provided 
by  the  law;  nor  for  any  other  purpose  at  any  price. 
If  this  be  true,  it  is  certainly  a  hardship  on  the 
city,  for  it  is  moat  emphatically  decided  that  she 
is  bound  to  furnish  it  for  the  "family  uses"  of 
such  of  her  citizens  as  may  be  confined  in  her 
prisons,  almhouses,  and  hospitals,  for  her  public 
offices,  school-houses,  and  in  all  other  places  where 


there  are  servants  or  wards  of  the  city  needing 
water  for  "family  uses,"  and  there  can  be  no 
doubt  of  the  correctness  of  this  decision.  But  it 
is  also  held  that  the  company  is  not  bound  to  fur- 
nish the  water  for  those  uses,  even  to  the  city,  free 
of  charge.  If  the  city  has  neglected  to  take  the 
proper  measures  to  have  the  rates  fixed,  it  is  no 
fault  of  the  company,  and  the  city  cannot  thereby 
become  entitled  to  escape  the  payment  for  the 
private  property  which  she  has  so  long  been  using 
for  these  purposes.  The  city  has  no  more  right 
to  take  advantage  of  her  own  wrong  than  has  any 
individual,  and  she  cannot  escape  liability  to  pay 
for  the  property  of  another  which  she  has  taken 
and  consumed,  on  the  ground  that  she  has  herself 
neglected  to  provide  the  statutory  means  of  ascer- 
taining its  value.  If  these  rates  have  not  been 
fixed,  she  is  in  exactly  the  same  position  as  any 
other  consumer — she  must  pay  the  rates  fixed  by 
the  company,  or  such  price  as  she  can  agree  upon 
with  the  company,  the  more  especially,  since  the 
neglect  has  been  her  own,  and  riot  the  company's. 

But  we  submit,  that  as  to  water  for  family  uses, 
as  well  as  to  water  for  any  and  all  other  purposes 
for  which  the  city  may  have  need  of  the  same, 
and  for  which  ,she  is  not  entitled  to  it  free  of 
charge,  the  city  has  full  power  to  contract,  and 
even  if  rates  had  been  established  in  the  manner 
provided  by  law,  she  would  not  be  bound  to  pay 
those  rates,  if  she  could  get  it  for  a  less  price. 
It  may  be  true  that  there  is  no  express  provision 
of  the  Consolidation  Act,  authorizing  the  city  to 


55 

contract  for  water  for  municipal  purposes;  but 
she  has  not  only  the  right  to  exercise  all  the  ex- 
press powers  named  in  that  Act,  but  like  any 
other  municipal  corporation,  the  power  to  do  all 
other  things  necessary  to  be  done  in  exercising 
the  express  powers  given  to  _her,  and  performing 
the  duties  imposed  upon  her  by  its  provisions. 

Spalding  vs.  Lowell,  22  Pick.,  71. 

Bangs  vs.  Snow,  1  Mass.  181. 

New  London  vs.  Brainard,  22  Conn.  552. 

Oakland  vs.  Carpeiitier,  18  Cal.,  540. 

Bridgeport  vs.  Railroad  Company,  15  Conn.  475. 

As  was  said  in  Harlem  Gas  Co.  vs.  the  Mayor  (33 
N.  Y.,  327)  in  reference  to  gas,  so  we  may  say 
here  in  reference  to  water,  the  power  and  duty  of 
the  municipal  government  to  furnish  it  cannot  be 
denied  with  any  show  of  reason  or  good  sense. 
Nor,  as  still  further  laid  down  in  that  case,  is  it 
obligatory  upon  the  city  to  purchase  of  a  particu- 
lar person,  or  at  a  prescribed  rate.  It  is  the  duty 
of  the  City  Government  to  procure  such  supplies 
on  the  most  economical  terms  that  they  can  be 
had,  consistent  with  that  other  duty  imposed  upon 
her  in  common  with  all  other  persons,  to  do  jus- 
tice. While  she  has  no  right  to  take  and  consume 
the  property  of  another  without  compensation, 
she  is  equally  bound  to  procure  it  upon  the  best 
terms  she  can  arrange.  Therefore,  it  does  not  fol- 
low because  rates  have  been  established,  at  which 
the  inhabitants  of  a  city  have  a  right  to  demand 
that  they  shall  be  furnished  with  water  or  gas 


56 

the  city  itself,  consuming  a  much  larger  quantity 
than  any  individual,  must  pay  the  same  rate,  if 
she  can  contract  for  a  loss  price.  She  may  de- 
mand it  for  her  family  uses,  at  the  prescribed  rate, 
but  she  may  contract  for  it  at  a  less  rate  if  she 
can.  And  if  she  has  had  and  consumed  the  sup- 
ply, without  a  rate  having  been  established,  and 
without  a  contract,  she  is  still  bound  to  do  justice, 
and  pay  what  it  is  reasonably  worth. 

Dillon  on  Municipal  Corporations,  Sec.,  384. 
Argenti  vs.  San  Francisco,  16  Cal.,  255. 
Wheeler  vs.  Chicago,  24  111.,  105. 
Harlem  Gas  Co.  vs.  Mayor,  above  cited. 

We  have  already  shown  that  the  rates  to  be 
fixed  under  the  statute  apply  only  to  water  for 
those  uses  for  which  the  company  is  compelled  to 
sell  it,  without  distinction  of  persons,  namely,  for 
family  uses.  It  follows  that  for  all  other  purposes 
for  which  the  city  may  require  the  water  (except  such, 
if  any,  as  she  may  be  entitled  to  demand  it  for,  free 
of  charge)  the  price  must  be  a  subject  of  contract. 
We  have  cited  authorities  showing  that  the  water 
company  has  full  power  to  make  any  contract,  not 
ultra  vires,  and  coming  within  the  purview  of  the 
purposes  of  its  incorporation.  That  fact  will 
hardly  be  disputed.  All  through  the  consolida- 
tion Act,  the  power  of  the  city  to  make  such  con- 
tracts as  are  necessary  to  carry  out  the  provisions 
of  the  Act,  is  recognized,  and  the  mode  and  man- 
ner of  making  contracts  upon  some  subjects  is 
expressly  provided  for.  The  power  to  contract  is 


57 

a  necessary  incident  of  the  government  itself. 
How  then  can  it  be  said  that  the  one  party  has 
no  power  to  contract  for  the  sale  of  that  in  which 
it  was  organized  to  deal,  or  the  other  no  power 
to  contract  for  the  purchase  of  that  which  it  con- 
fessedly must  have,  in  order  to  provide  for  the 
good  order,  welfare  and  government  of  its  people, 
to  accomplish  the  very  purpose  of  its  existence? 


VIII.— THE    OBJECT,    THE    POLICY,    AND    THE 
HARDSHIP  OF  THE  LAW. 

This  heading  suggests  a  line  of  argument  which 
we  have  seldom,  if  ever,  felt  at  liberty  to  address  to 
a  Court.  A  line  of  argument  addressed  rather  to 
the  legislative  than  the  judicial  department  of  the 
government.  But  it  is  sometimes  permitted  to  a 
Court  to  enter  into  a  consideration  of  these  ques- 
tions, when  the  language  of  the  statute  is  such  as  to 
leave  a  doubt  as  to  what  was  intended.  When  a 
doubt  remains  as  to  the  construction  of  a  statute, 
we  may  inquire  into  the  object  to  be  accomplished, 
and  the  reasons  which  prompted  the  Legislature 
in  passing  the  Act.  From  the  discussion  which 
has  been  had,  both  by  counsel  and  Court,  this 
seerns  to  be  such  a  case.  We  also  feel  justified 
in  entering  upon  this  inquiry  at  this  time,  for  the 
reason,  that  while  we  have  not  heretofore  respond- 
ed to  it,  the  special  counsel  opposed  to  us,  has, 
for  a  number  of  years,  ever  since  his  first  appear- 
ance in  the  former  case,  made  this  particular  line 


58 

of  argument  the  burthen  of  his  complaint;  ap- 
pealing to  the  sympathies  of  the  Court,  and  the 
prejudices  of  the  people  (for  his  arguments  have 
been,  in  a  large  degree,  addressed  to  the  people), 
and  making  many  statements  of  fact  not  relevant 
to  the  case,  and  sometimes  more  imaginary  than 
real.  The  Court  also  has  declared  that  "there  is 
no  hardship  in  compelling  it  (the  company)  to 
furnish  the  city  and  county,  to  the  extent  of  its 
jpeans,  free  of  charge,  all  water  necessary  for  wat- 
ering streets,  public  squares  and  parks,  and  for  all 
like  purposes  beneficial  to  the  public,  and  in  aid 
of  the  health  and  good  government  of  the  people 
of  the  city  and  county." 

We  therefore  feel  at  liberty,  in  closing  this  pe- 
tition for  rehearing,  to  inquire  into  the  circum- 
stances under  which  this  law  was  passed,  the  object 
to  be  accomplished,  and  the  hardship  of  the  law.  as 
construed  by  the  Court. 

We  find  then,  that  at  the  time  of  the  passage 
of  this  Act,  there  had  sprung  up,  within  a  few 
years,  a  goodly  city,  builded  upon  a  barren  sand, 
where  little  or  no  water  was  found,  in  a  climate 
where  there  was  no  rain  for  eight  months  in  the 
year.  That  ever  since  it  was  founded,  the  inhab- 
itants had  been  dependent  upon  water  carts  for 
fresh  water  for  all  purposes  for  which  the  same 
was  needed,  most  of  the  water  being  brought 
from  across  the  bay,  and  distributed  in  the  man- 
ner we  have  stated,  and  at  great  cost  to  the  con- 
sumer. That  the  supply  was  inadequate  to  meet 


any  but  the  most  absolute  demands  of  nature. 
That  th  3  city  was  growing  rapidly,  from  the  force 
of  circumstances  with  which  it  was  surrounded, 
but  its  growth  was  greatly  retarded,  and  property 
values  greatly  depreciated,  for  the  want  of  water. 
That  all  the  water  which  it  was  possible  to  get  for 
the  extinguishment  of  fires,  must  be  drawn  from 
the  bay,  and  that  buildings  lying  beyond  the 
reach  of  this  supply  were  absolutely  at  the  mercy 
of  the  flames.  The  result  was  that  improvements 
would  not  spread  beyond  the  reach  of  the  water 
line,  and  everywhere  rates  of  insurance  were 
enormous.  Under  these  circumstances  a  small 
corporation  had  been  formed  under  the  general 
incorporation  law  of  1853,  to  utilize  a  small 
source  of  supply  found  within  the  limits  of  the 
city  and  county,  but  this  supply  was  in  itself 
wholly  inadequate  to  meet  the  wants  of  a  grow- 
ing city,  being  only  about  two  millions  gallons 
per  day,  and  the  company  had  no  power  to  go 
elsewhere,  for  a  larger  supply.  It  had  not,  nor 
could  any  company  which  could  be  organized 
under  the  law  as  it  then  stood,  have  any  power  to 
acquire  property  against  the  will  of  the  owner, 
even  upon  rendering  full  compensation  therefor; 
or  any  power  to  lay  pipes  in  the  streets  of  the 
city,  unless  it  could  be  obtained  from  the  city 
authorities  by  contract.  We  need  not  stop  to 
consider  the  modus  opemndi  by  which  experience 
teaches  that  such  contracts  must  usually  be  ob- 
tained, or  the  precarious  tenure  by  which  rights 
under  them  are  held.  Enough  to  know,  that  at 
the  time  this  law  was  passed,  there  was  no  ade- 


60 


quate  means  of  supplying  the  water  at  any  price, 
nor  any  law  under  which  capital  could  be  induced 
to  embark  in  the  undertaking  of  procuring  and 
introducing  into  the  city  an  adequate  supply. 
Geo.  H.  Ensign  appeared  before  the  Legislature 
and  asked  for  a  franchise  which  would  enable  him 
and  his  associates  to  go  beyond  the  limits  of  the 
city  and  count}-,  and  find  a  supply  which  should 
be  sufficient  for  the  needs  of  the  city,  bring  it 
into  the  city,  and  the  right  to  lay  pipes  in  the 
public  streets .  without  the  necessity  of  apply- 
ing to  the  city  authorities  for  a  contract  granting 
that  right.  This  called  the  attention  of  the  legis- 
lature to  the  necessity  of  a  general  law  on  the 
subject,  and  this  Act  for  the  incorporation  of 
water  companies  was  introduced  and  passed,  and 
became  a  law.  Under  it  nearly  the  same  induce- 
ments were  held  out  to  capitalists  generally,  to 
engage  in  the  business  of  constructing  water 
works,  and  introducing  water  into  this  or  other 
cities  of  California,  as  were  asked  by  Ensign  and 
his  associates,  but  with  both  Acts  before  it.  and  the 
ivohle  subject  then  under  careful  consideration,  the  Leg- 
islature deliberately,  and  we  must  assume  purposely, 
changed  th'  phraseology  of  the  Ensign  Act,  from  "  FIRE 

AND  OTHER  MUNICIPAL  PURPOSES,"  to  "  IN  CASE  OF  FIRE 
OR  OTHER  GREAT  NECESSITY."  With  the  two  Acts  mOV- 

ing  along  through  the  Legislature  at  the  same  time,  one 
si  ecial  and  the  other  general,  the  last  induced  by  the 
application  nf  the  first,  it  must  be  held  that  there  was 
some  object  in  this  change — that  it  could  not  have  been 
intended  that  the  language  of  the  general  law  should 
mean  the  same  as  that  of  the  special  Act. 


61 

Under  these  circumstances,  and  after  the  pas- 
sage of  this  law,  this  company  was  incorporated 
under  the  General  Incorporation  Law  of  the  State, 
and  under  this  law  of  1858,  and  commenced  oper- 
ations. In  its  operations  it  has  been  the  greatest 
benefactor  the  City  of  San  Francisco  has  ever  had. 
No  other  individual,  or  number  of  individuals,  or 
corporation,  has  ever  contributed  so  much  to 
the  building  up  of  the  city,  the  enhancement  of 
the  values  of  its  real  estate,  the  comfort  of  its 
inhabitants,  and  the  reduction  of  their  bur- 
thens of  taxation,  as  the  Spring  Valley  Water 
Works.  By  reason  of  its  works,  the  onerous 
tax  of  insurance  has  been  reduced  to  a  sum  not 
exceeding  thirty  per  cent,  of  what  it  formerly 
was,  and  what  it  must  have  continued  to  be  in 
the  absence  of  such  works.  Population  has  in- 
creased beyond  all  precedent,  and  instead  of  be- 
ing confined  to  a  few  squares  near  the  water  front, 
it  has  spread  over,  and  adorns  the  whole  peninsu- 
la. Instead  of  the  cheap  and  temporary  huts 
which  men  builded  when  they  had  no  protection 
against  fire,  stately  mansions  and  comfortable 
homes  cover  all  the  hills.  Instead  of  families 
making  a  barrel  of  water  last  a  week,  they  may 
and  do  now  use  it  in  quantity  more  than  sufficient 
to  insure  all  the  purposes  of  cleanliness  and 
health.  Every  comfort  has  been  promoted,  and 
every  industry  advanced,  by  the  introduction  of 
an  abundant  supply  of  pure  water  into  a  city 
where  such  a  thing  was  before  almost  unknown. 
Values  have  been  increased  an  hundred  fold,  and 
the  rate  of  taxation  proportionately  diminished. 


62 

Even  the  company  itself  has  created  and  pays 
taxes  upon  nearly  or  quite  a  million  of  dollars  of 
taxable  property  within  the  city,  which  before 
that  had  no  existence. 

And  it  was  to  accomplish  this  purpose,  to  in- 
duce an  association  of  capital  that  should  work 
this  grreat  public  good,  and  accomplish  this  end 
so  necessary  to  the  growth  of  the  city,  that  the 
trifling  advantages  furnished  by  this  Act  were  of- 
fered. And  what  were  those  advantages  ?  Simply 
the  right  to  go  into  the  then  wastes  and  wilds  of 
San  Mateo  county,  in  its  most  inaccessible  part, 
and  condemn  lands  and  waters,  if  it  could  not  buy 
them,  and  the  right  to  lay  pipes  in  the  streets  of 
the  city,  without  paying  tribute  to  its  government 
other  than  keeping  the  streets  in  repair — restor- 
ing them  after  the  pipes  were  laid,  to  the  condi- 
tion in  which  it  found  them.  Under  the  first  of 
these  privileges,  it  has  acquired  and  holds  one 
and  3-100  acres  of  land,  all  the  balance  of  its 
property  it  has  acquired  like  any  other  citizen,  by 
purchase,  and  holds  by  deed.  Under  the  second 
it  has  laid  down  over  two  hundred  miles  of  pipe 
and  mains  in  the  streets  of  the  city  and  county  of 
San  Francisco,  and  brought  the  water  to  the  very 
doors  of  all  its  inhabitants. 

Were  these  paltry  privileges  too  great  an  in- 
ducement to  offer  for  an  investment  of  private 
capital  which  should  work  so  great  a  public  good  ? 
Were  they  so  great  that  we  can  find  no  motive  for 
the  Act  of  the  Legislature  in  granting  them,  short 


63 

of  holding  that  it  intended  to  compel  us,  as  a  fur- 
ther consideration  for  them,  in  addition  to  being 
compelled  to  sell  the  water  for  a  certain  purpose 
at  rates  to  be  fixed  by  others  than  ourselves,  also 
to  surrender  any  part  or  the  whole  of  the  proper- 
ty introduced  at  such  a  cost,  to  the  public  author- 
ities, "  upon  demand,"  and  without  compensation  ? 
Most  assuredly,  it  should  require  very  strong  and 
clear  language  to  justify  any  such  conclusion;  and 
if  the  language  was  sufficiently  clear  to  justify 
the  conclusion  that  such  was  the  intention  of  the 
Legislature,  then  it  would  be  the  duty  of  the 
Court  to  say  that  the  Legislature  had  attempted 
to  do  what  was  against  common  right,  against  the 
most  sacred  rights  of  civilization,  and  against  the 
constitution  of  the  State  and  the  nation. 

Is  any  such  demand  made  upon  other  corpora- 
tions or  individuals,  for  similar  privileges  granted 
to  them  ?  Gas  companies  have  the  same  rights  in 
streets  that  water  companies  have,  their  works 
cost  but  a  bagatelle  compared  to  the  sum  that 
these  works  have  cost.  Is  there  an  instance  in 
all  the  legislation  of  the  State,  where  it  has  even 
been  attempted  to  require  them  to  furnish  a  sin- 
gle farthing's  worth  of  their  property — of  their 
stock  in  trade — without  compensation?  No  such 
provision  can  be  found  in  the  statutes  of  this  State, 
nor  is  it  believed  such  can  be  found  anywhere 
else.  The  only  reason  why  there  should  beany 
distinction  between  these  two  classes  of  corpora- 
tions in  that  regard  is,  that  the  water  company 
deals  in  a  commodity  which  may  sometimes  be' 


04 

required  upon  a  sudden  emergency,  when  there  is 
no  time  to  dicker  for  price,  or  measure  quantity, 
to  stem  the  torrent  of  a  great  public  calamity: 
while  the  commodity  dealt  in  by  the  gas  company 
could  not  be  used  for  such  a  purpose,  but  would 
destroy,  rather  than  save.     Therefore  the  element 
of  luxury  and  destruction  is  not  burthened,  even 
on  these  occasions  of  public  calamity,  while  the 
element  of  necessity  and  salvation  is  so  burthened 
then,  and  it  is  even  claimed  to  be  burthened  when- 
.  ever   the    public  authorities   shall   "demand   it." 
The  reasoning  is  not  founded  in  justice,  and  we  do 
not  believe  it  is  founded  on   law.     All  railroad 
companies  are  authorized  to  enjoy  the  other  priv- 
ilege, that  of  acquiring  property  by  condemnation, 
and  yet  no  law  requires  that  they  should  surren- 
der  property,  or    render  service  free  of  charge. 
We  look  in  vain  for  any  reason  which  should  have 
induced  the  Legislature  to  impose  this  burthen 
upon  us — any  corresponding  privilege  which  should 
justify  it,  or  any  precedent  which  should  justify 
the  conclusion  that  it  intended  to  do  so. 

But  we  are  told  that  the  water  should  be  fur- 
nished free  of  charge,  because  these  works  have 
been  constructed  at  the  public  expense.  Let  us 
see.  Not  a  single  dollar  of  public  money  has  ever 
gone  into  the  works  of  this  corporation.  It  has 
never  been  subsidized  to  the  extent  of  a  farthing. 
It  has  never  asked  or  received  public  aid.  On  the 
contrary,  from  the  hour  when  it  first  put  a  pick 
into  the  ground  in  the  construction  of  its  works, 
it  has  been  a  contributor  to  all  the  expenses  of 


G5 

the  government,  paying  its  full  proportion  of  all 
the  assessments  levied  for  that  purpose.  For  six 
years,  the  men  who  inaugurated  this  enterprise 
kept  pouring  their  money  into  the  work,  until  the 
sum  had  run  up  into  many  millions  of  dollars, 
without  receiving  one  cent  in  return;  and  ever 
since  the  work  began  to  bring  in  an  income,  the 
great  bulk  of  that  income  has  been  used  for  the 
construction  and  enlargement  of  the  works,  so 
that  the  stockholders  have  never  yet  received  the 
equivalent  of  five  per  cent,  per  annum  interest  for 
their  money,  and  more  than  nineteen  millions  of 
dollars  have  gone  into  the  works. 

But,  says  the  counsel  for  the  city,  the  income 
from  the  works,  the  money  derived  from  the  sales 
of  water,  have  gone  into  the  works.  To  that  ex- 
tent they  have  been  built  out  of  the  moneys  paid 
in  by  consumers,  and  to  that  extent  they  are  pub- 
lic works,  therefore  the  public  ought  to  have  all 
the  water  required  for  municipal  purposes  free  of 
charge.  We  fail  to  see  the  force  of  the  argument, 
or  the  justice  of  the  conclusion.  The  money  of  the 
comumer  was  not  public  money,  and  if  there  is  any- 
thing in  the  fact  upon  which  to  base  an  argument, 
that  argument  is  against  the  city,  and  in  favor  of 
the  proposition  that  she  should  pay  for  the  water 
used  for  public  purposes,  and  thus  enable  the  com- 
pany to  make  a  reduction  in  favor'  of  the  con- 
sumer. But  the  suggestion  itself  is  a  fallacy. 
As  well  might  the  city  say  to  the  merchant  who 
had  commenced  business  upon  a  capital  of  two 
hundred  thousand  dollars,  worked  hard  for  twenty 


66 

years,  drawing  nothing  out  of  the  business,  allow- 
ing nil  the  income  to  accumulate  and  increase  the 
capital,  until  the  same  had  become  doubled,  "  this 
ship  and  cargo  was  purchased  with  money  paid  in 
by  your  customers,  and  is  therefore  public  prop- 
erty. We  want  the  ship  for  a  training  ship,  and 
the  cargo  to  feed  our  prisoners,  and  the  sick  in 
our  hospitals,  and  we  are  going  to  cake  them  for 
those  public  purposes,  without  paying  you  a  cent 
for  them."  The  cases  would  be  exactly  parallel. 
As  well  might  the  city  seize  the  stock  in  trade  of 
any  dealer  in  the  cityf  and  convert  it  to  public 
uses,  without  compensation,  and  justify  the  act 
on  the  ground  that  the  dealer  had  purchased  it 
out  of  money  that  he  had  received  from  other 
citizens  in  the  course  of  his  business.  As  well 
might  she  seize  and  convert  the  private  fortune 
of  her  own  counsel,  and  justify  the  act  on  the 
ground  that  he  made  that  fortune  out  of  the  pub- 
lic, in  the  shape  of  fees  received  from  private 
citizens. 

One  word  as  to  the  hardship  of  the  law  The 
Court  says  it  is  no  hardship  to  compel  the  com- 
pany to  furnish  water  free  of  charge,  for  watering 
the  streets,  the  public  parks,  flushing  the  sewers, 
and  for  all  like  purposes  beneficial  to  the  public. 
We  hardly  think  it  is  for  the  Court  to  say  whether 
it  is  a  hardship  or  not,  or  that  its  judgment  ought 
to  be  based  upon  the  question  of  whether  or  not 
it  is  such. 

But  can  it  be  justly  said,  when  a  few  hundred 
men  have  combined  their  fortunes,  and  embarked 


07 

in  an  enterprise  like  this,  that  it  is  no  hardship  to 
take  the  property  accumulated  by  that  combined 
fortune,  "  to  the  full  extent  of  its  means"  and  convert 
it  to  any  and  every  public  use  that  the  public  au- 
thorities may  deem  generally  beneficial  or  desira- 
ble, or  may  "  demand"  without  compensation? 
Are  men  to  hold  their  fortunes  by  so  uncertain 
and  precarious  a  tenure  as  that?  Better  that  we 
had  no  government  at  all,  than  a  government 
which  furnishes  no  better  protection  to  property 
than  this.  If  this  be  true,  then  the  very  object 
of  government  is  destroyed  by  government  itself. 
Even  the  municipality  itself,  has  never  claimed 
that  under  any  law,  or  anypf  the  ordinances  upon 
which  it  has  heretofore  relied,  it  was  entitled  to 
this  water  free  of  charge,  for  the  watering  of  its 
streets;  and  in  its  own  ordinances,  in  which  it  has 
attempted  to  compel  companies  to  furnish  water 
free  of  charge  for  municipal  purposes  generally,  it 
has  expressly  excepted  the  sprinkling  of  streets, 
as  a  purpose  for  which  it  should  not  be  so  entitled. 
The  Counsel  himself,  with  all  his  enlarged  ideas 
of  public  right  in  private  property,  has  never  gone 
so  far  as  this.  We  have  never  before  been  threat- 
ened with  having  the  entire  resources  of  the  com- 
pany exhausted,  and  a  demand  that  they  should 
be  doubled,  to  furnish  the  water  that  could  be 
used,  and  if  we  were  obliged  to  furnish  it  free, 
would  be  used,  to  water  the  hundreds  of  miles  of 
streets  of  this  populous  city. 

Can  it  be  said  that  it  is  no  hardship  to  require 
a  private  corporation  to  furnish,  free  of  charge  all 


68 

the  water  that  the  public  may  see  fit  to  use  in 
beautifying  hundreds  of  acres  of  public  parks, 
laid  out  upon  thirsty  and  otherwise  barren  sands? 
If  private  citizens  can  be  thus  compelled  to  fur- 
nish water  for  such  a  purpose,  without  cost  to  the 
municipality,  there  will  be  no  limit  to  its  use, 
short  of  the  capacity  of  the  earth  to  drink  it  up; 
and  in  a  country  where  water  has  to  be  brought 
from  such  long  distances,  and  no  rain  falls  for 
three-fourths  of  the  year  to  contribute  to  the 
supply,  instead  of  a  capital  of  twenty,  millions, 
a  hundred  millions  will  be  found  too  small  a  sum 
to  meet  the  demand. 

Again,  it  is  only  in  cases  of  necessity,  at  the  very 
utmost,  that  we  are  required  to  furnish  water  free 
of  charge.  It  is  a  mistake  to  say  that  we  are  so 
required  to  furnish  it  for  all  public  purposes  for 
which  the  public  authorities  may  demand  the 
same;  or  that  we  are  to  furnish  it  for  public  con- 
venience and  ornamentation.  Public  parks  may 
be  a  convenience;  they  may  tend  to  the  cultiva- 
tion of  good  taste,  and  beautify  the  city.  To  a 
limited  extent  they  may  be  a  public  necessity,  in 
crowded  cities,  but  the  necessity  is  for  open  space, 
not  for  flower  gardens  and  places  of  beauty.  The 
water  is  used  to  ornament,  not  to  meet  the  de- 
mand of  that  necessity.  It  contributes  nothing 
to  supply  the  public  want  for  space,  but  simply 
to  beautify  the  space  which  public  want  de- 
manded. 

Even  striking  out  the  word  "  great"  and  put- 
ting the  broadest  interpretation  upon  the  word 


69 

"  necessity,"  we  do  not  see  how  the  company  can 
be  held,  under  the  law,  to  furnish  water  free  of 
charge,  for  these,  or  any  "  like  purposes." 

But.  if  the  corporation  and  its  stockholders  are 
entitled  to  no  consideration — if  their  property 
may  be  thus  taken  for  such  purposes,  without 
compensation,  there  is  another  and  a  larger  class, 
upon  whom  this  rule  does  and  will  continue  to 
work  a  hardship.  Complaint  has  always  been 
made  about  the  cost  of  water  to  the  consumer.  It 
is  high  ;  from  the  very  nature  of  the  circum- 
stances, it  must  always  be  comparatively  high,  to 
consumers  in  California.  In  no  other  country  are 
there  so  many  elements  combined  to  increase  the 
actual  cost  of  supplying  water  as  here.  But  with 
a  fair  construction  of  reasonable  and  just  laws,  it 
need  not  always  be  as  high  as  it  has  been  in  the 
past.  It  is  not  now  more  than  a  tenth  part  as 
high,  in  proportion  to  the  quantity  used,  as  it  was 
before  the  construction  of  these  works.  When 
the  works  are  completed,  and  the  full  supply  at 
the  command  of  the  company  brought  into  the 
city,  if,  as  in  other  cities,  all  contributed  their  pro 
rata  to  the  maintainance  of  the  works,  the  cost 
could  and  would  be  still  further  and  greatly  re- 
duced. Elsewhere,  every  owner  of  property  con- 
tributes something  to  the  cost  of  bringing  water 
into  the  city,  but  here  no  property  bears  the  bur- 
then except  that  of  the  stockholders,  and  only  the 
private  citizens  who  have  actual  connections  with 
the  pipes  contribute  towards  a  return  upon  the 
capital  invested.  When  there  are  but  about  fifteen 


70 


thousand  of  these,  in  a  city  like  San  Francisco, 
the  burthen  is  necessarily  heavy.  And  if  in  the 
future  the  company  shall  be  compelled  to  furnish, 
free  of  charge,  all  the  water  for  public  purposes 
"  other  than  family  uses,"  that  may  be  demanded 
by  an  ever  changing,  and  not  always  wisely  se- 
lected corps  of  public  officers,  the  hardship  upon 
the  consumers  must  of  necessity  be  increased 
rather  than  diminished.  No  matter  if  rates  have 
to  be  fixed  at  which  these  consumers  shall  be  fur- 
nished, we  cannot  assume  that  any  board  of  com- 
missioners will  ever  fix  rates  that  will  not  at  least 
cover  the  expense  of  maintaining  the  works,  and 
we  may  assume  that  they  will  recognize  the  jus- 
tice of  so  fixing  them  that  they  shall  yield  some 
small  return  upon  the  capital  invested.  Neither 
can  be  done  without  making  the  rate  a  hardship 
upon  consumers,  unless  all  regular  consumers  are 
paying  ones. 


FINALLY. 

We  submit  that  the  custom  of  the  country,  and 
the  custom  of  the  world,  furnishes  some  criterion 
upon  which  to  judge  of  the  intention  of  the  law 
maker,  in  cases  of  this  kind.  There  is  no  reason 
to  suppose  that  the  legislature  of  California  in- 
tended to  create  a  system  the  reverse  of  that 
practiced  everywhere  else.  The  more  especially 
so,  since  here  the  need  for  such  works,  and  the 
cost  of  the  undertaking,  was  greater  than  almost 
anywhere  else.  Water  works  for  the  supply  of 


the  inhabitants  of  cities,  are  no  new  thing.  They 
are  older  than  California^ older  th  n  America. 
And  we  find  that  in  every,  city  in  the  world,  where  such 
works  are  held  in  private  ownership,  and  the  city  is  a 
consumer  from  them,  it  pays  for  the  water  used  for  all 
its  ordinary  municipal  puposes.  Nowhere,  but  in  San 
Francisco,  has  it  ever  been  contended  that  the  property 
of  a  private  corporation  could  be  taken  for  this  public 
use,  without  compensation.  And  even  under  this  law, 
under  which  many  cities  in  California  are  now  provided 
with  water  through  private  corporation*,  it  has  remained 
far  San  Francisco  alone  to  claim  that  she  was  entithd 
to  the  water  free  of  charge  for  any  purpose  other  than 
the  extinguishment  of  fires.  $o  other  city  has  at- 
tempted a  like  confiscation  of  the  property  of  its  citizens. 
We  believe  the  attempt  to  be  both  unjust  and  un- 
lawful, but  desire,  as  we  always  have,  to  be  law 
abiding  on  our  own  part.  We  .have  therefore  ap- 
pealed to  your  Honors  to  determine  what  is  the 
law,  and  feeling  that  your  recent  opinions  in  both 
these  cases  (Nos.  5088  and  5631)  ought  to  be  re- 
vised and  reconsidered,  we  respectfully  ask  that  a 
rehearing  be  granted,  in  both  cases. 

CHAS.  N.  FOX, 
Attorney  for  S.  V.  W.  W. 

J.  P.  HOGE, 
Of  Counsel. 


This  book  is  DUE  on  the  last  date  stamped  below 


Form  L-B 
25m-2,'43(5205> 


S25S7  water  company, 
i§70   San  Tranci  s  co  ."* 

The^Spring .._ 
Valley  water  works, vs. 
the  city  and  county  of 
San  Francisco.  ..Die 
Spring  Valley  water 


II 1 1 II  II  III  I 

D    0008 


TD 
225 
S25S7 
1870 


